Mistake of law
Encyclopedia
Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is typically differentiated from mistake of fact. As a legal term of art it is primarily applicable to civil law
.
There is a longstanding principle of public policy
that "ignorance of the law is no excuse
". In criminal cases, a mistake of applicable law is not a recognized defense, though such a mistake may in very rare instances fall under the legal category of "exculpation". In criminal cases a mistake of fact is normally called simply, "mistake
".
are required to publish the law and make it reasonably available to the public. The presumption of knowledge of applicable law generally will also apply in the situation of a recent change in the law with which a party in a legal case had no opportunity to become aware of it, e.g. the accused was out hunting in the wilderness and did not know that the law changed to protect an endangered species.
Some states make a distinction between a mistake as to the substance and effect of existing laws, and a mistake that the law creates a specific right to act in the particular way. Suppose, for example, that A, the owner of a vehicle, takes it into a garage for repair. When returning to collect it, A finds that the vehicle has been left parked in the street. If he has an honest belief that he has the right as an owner to retake possession of the vehicle without paying the outstanding bill for the repairs, he will not be considered as stealing it despite the fact that the garage holds a lien
over the vehicle and so has the better right to possession until the bill is paid. This form of the defense is difficult to prove because the defendant must be able to prove that he believed in something more positive than the law permitted the particular behavior. The belief must be that the law creates and vests a specific right to act in that way. Under the Theft Act 1968
and the Criminal Damage Act 1971, a defense will arise if the defendant honestly believes that he is entitled to act in the way he did and this will negate the relevant mens rea element (e.g. of dishonesty
under §2 Theft Act 1968). In Chamberlain v Lindon 1998 Lindon demolished a wall to protect a right-of-way
, Despite allowing nine months to pass before acting, Lindon honestly believed that it was immediately necessary to protect his legal rights without having to resort to civil litigation. For the purposes of §5(2):
Thus a lawful excuse may be acknowledged by a court to arise when a person honestly but mistakenly believes that the actions are necessary and reasonable.
was final when she submitted the paperwork required by the state, and did not realize that she had to wait for a court to pronounce her divorced. In the interim, she marries Ben, and so is technically committing bigamy
because she has married a second man before her divorce from the first was complete. Jennifer's mistake was not one of governing law (she did not mistakenly believe it was legal to be married to two people), but rather a mistake of non-governing law, which is akin to a mistake of fact. Depending on the jurisdiction in which the act took place, Jennifer may be allowed to raise the defense of mistake of law in such a scenario. See Long v State, 44 Del. 262.
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
.
There is a longstanding principle of public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
that "ignorance of the law is no excuse
Ignorantia juris non excusat
Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...
". In criminal cases, a mistake of applicable law is not a recognized defense, though such a mistake may in very rare instances fall under the legal category of "exculpation". In criminal cases a mistake of fact is normally called simply, "mistake
Mistake (criminal law)
A mistake of fact may sometimes offer exculpation by allowing a criminal defendant some relief from liability for having broken the law...
".
General principles
Generally, there is in legal cases an irrebuttable presumption that people who are about to engage in an activity will comply with applicable law. All statesState (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
are required to publish the law and make it reasonably available to the public. The presumption of knowledge of applicable law generally will also apply in the situation of a recent change in the law with which a party in a legal case had no opportunity to become aware of it, e.g. the accused was out hunting in the wilderness and did not know that the law changed to protect an endangered species.
Some states make a distinction between a mistake as to the substance and effect of existing laws, and a mistake that the law creates a specific right to act in the particular way. Suppose, for example, that A, the owner of a vehicle, takes it into a garage for repair. When returning to collect it, A finds that the vehicle has been left parked in the street. If he has an honest belief that he has the right as an owner to retake possession of the vehicle without paying the outstanding bill for the repairs, he will not be considered as stealing it despite the fact that the garage holds a lien
Lien
In law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
over the vehicle and so has the better right to possession until the bill is paid. This form of the defense is difficult to prove because the defendant must be able to prove that he believed in something more positive than the law permitted the particular behavior. The belief must be that the law creates and vests a specific right to act in that way. Under the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
and the Criminal Damage Act 1971, a defense will arise if the defendant honestly believes that he is entitled to act in the way he did and this will negate the relevant mens rea element (e.g. of dishonesty
Dishonesty
Dishonesty is a word which, in common usage, may be defined as the act or to act without honesty. It is used to describe a lack of probity, cheating, lying or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherousness...
under §2 Theft Act 1968). In Chamberlain v Lindon 1998 Lindon demolished a wall to protect a right-of-way
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
, Despite allowing nine months to pass before acting, Lindon honestly believed that it was immediately necessary to protect his legal rights without having to resort to civil litigation. For the purposes of §5(2):
- it is not necessary to decide whether Lindon’s action was justified as a matter of civil law. For the purpose of the criminal law, what matters is whether Lindon believed that his actions were reasonable, i.e. a subjective test.
Thus a lawful excuse may be acknowledged by a court to arise when a person honestly but mistakenly believes that the actions are necessary and reasonable.
Mistake of non-governing law in the United States
One narrow area of exception occurs where a person makes a mistake of non-governing law. While the accused are not pardoned for failure to know what acts have been deemed criminal, they may not be held to know of non-criminal provisions that affect the status of things that might therefore be deemed criminal. For example, suppose Jennifer is married to Phillip, but decides to get a divorce in order to marry Ben. However, Jennifer mistakenly believes that the divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
was final when she submitted the paperwork required by the state, and did not realize that she had to wait for a court to pronounce her divorced. In the interim, she marries Ben, and so is technically committing bigamy
Bigamy
In cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
because she has married a second man before her divorce from the first was complete. Jennifer's mistake was not one of governing law (she did not mistakenly believe it was legal to be married to two people), but rather a mistake of non-governing law, which is akin to a mistake of fact. Depending on the jurisdiction in which the act took place, Jennifer may be allowed to raise the defense of mistake of law in such a scenario. See Long v State, 44 Del. 262.
External links
- Turner, Christian, The Burden of Knowledge (July 21, 2008). Georgia Law Review, Forthcoming. Available at http://ssrn.com/abstract=1166402