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Citation: 30 Isr. L. Rev. 214 1996
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MISTAKE OF LAW
Dan Bein*
A. Why Knowledge of Law is Not Included in the Definition of the
Mental Element
Generally speaking, the definition of the mental element in crime
does not even strive to encompass all the varieties of the psychological
processes which accompany the commission of an offence, but sorts out
only such components of it which legal policy dictates to be useful and
workable. For instance, generally speaking, no notice is taken of the
motive or of the intensity of passion, or whether the mental element was
spontaneous or premeditated.' In sorting out what parts of the
psychological process should form part of the definition of the mental
element, many considerations come into play, such as the ability to
verbalize and define such processes, difficulties of proof, etc. One of the
components of the psychological processes which is disregarded in the
definition of the mental element is knowledge of the existence and scope
of the criminal norm, and the existence and scope of "defences" (as they
were called in the old Penal Law, 1977) or "limitations to penal liability"2
as they are now called in the new Preliminary Part and General Part
of Penal Law (hereinafter the New Code).
Three different explanations are usually given to the rule that the
prosecution is not required to establish the existence of knowledge of the
penal norm:
The first is of a pragmatic nature: it is assumedly more difficult to
prove knowledge of norms than knowledge of facts. Therefore it would
be an unbearable burden on the prosecution to prove such knowledge.
In my opinion, this explanation is not substantiated by experience.
*
1
2
Judge of the District Court of Haifa, Teaching Fellow, Faculty of Law, University of
Haifa.
There are exceptions as in premeditated murder, but at least in Israel the court
decisions tend to "sterilize" premeditation of any real meaning (see Naim Beno v. A.G.
(1967) 21(i) P.D. 561).
Penal Law 1977 as amended by amendments 39 to 45, Chap. 6 (hereinafter the New
Code).
No. 1, 19961
MISTAKE OF LAW
215
Moreover, there are legal norms not directly related to the penal norm
which are treated as facts,3 and no one claims that this has caused any
special evidentiary problem.
According to the second explanation, every person living in a certain
community is presumed to have the capacity, and in most cases actually
knows, what is allowed and what is forbidden by penal law. Therefore,
all are legally presumed to know the contents of the penal norms. This
presumption is unrebuttable.
4
This explanation is consistent with the rule relating to penal capacity,
5
based on the MacNaughten and irresistible impulse doctrines. As is
well-known, one of the alternative elements of the MacNaughten test is
that a person suffering from an illness affecting his mind will not bear
criminal responsibility for an act which he did not know to be forbidden.
This element of the test may indicate that the legislature did assume
that knowledge of the Penal Law is a factor relevant to liability.
This explanation is also consistent with one of the versions of the
Draft Code6 in relation to the defence of "justification" which deals, inter
alia, with offences committed while obeying superior orders.
7
The Draft Code included two versions based on two different theories.
The first version (Version A) which eventually was adopted in the
new code, was based on the assumption that a soldier bound to obey
orders is under a certain kind of compulsion. Therefore, even were he
conscious to the unlawfulness of the act he is ordered to commit, he
would still be exculpated, so long as the unlawfulnesss of the act was
not manifest and clear to any ordinary person. In such a case the
soldier's duty would be to resist the compulsion which the order imposes.
The second version (Version B), which was not adopted in the new
code, assumed that an unlawful superior order causes a mistake as to
what is allowed or forbidden by the Penal Law. In other words, a soldier
who is otherwise able to distinguish between what is right and wrong
suffers a kind of moral confusion caused by the illegal order. Therefore,
3
4
5
6
7
See infra.
The so called "insanity defence" (Sec. 19 of the Penal Law 1977 and Sec. 34 H of the
New Code.)
See supran. 4 and Mandelbrotv.A.G. (1956) 10P.D. 281, now sec. 34H(2) of the New
Code.
Which formed the basis according to which the New Code was enacted. See the Penal
(Preliminary Part and General Part) Bill 1992 (H.H. No. 2098, p. 115) sec. 49, in this
issue, at p. 5.
Sec. 49 of the Draft Code.
216
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
where it is proven that a defendant in fact, knew that the order was
unlawful (even if not manifestly unlawful) he would not be able to
benefit from this defence because he was not mistaken. This second
theory relating to "justification" is consistent with the position that
knowledge of the law is a relevant factor of the mental element, though
one the prosecution is not required to prove.
In contradistinction to the above explanations of the rule that it is
not incumbent on the prosecution to prove knowledge of the penal norm
explanations which consider such knowledge as relevant, albeit
"behind the curtains" - there is a third explanation which denies even
that "hidden" significance to knowledge of the penal norm (hereinafter:
the objective explanation).
According to the objective explanation, the Penal Law represents an
objective Code of Ethics which must under all conditions prevail over the
subjective beliefs of the individual defendant as to the contents of the
criminal law. 8
B. Ignorance of Law as a Defence - General Considerations
It is relatively easy to defend a rule, according to which knowledge
of the penal norm forms no part of the definition of the mental element,
in relation to offences "malain se" (like murder, rape or theft) which are
known to all as embodying forms of behaviour which contravene accepted
moral values. It grows much more difficult with regard to the vast
amount of offences "mala prohibita", relatively modem phenomenon
incidental to wide ranging regularization of economics, health, worksafety, transportation, etc.
Such regularizations, and as a result also such offences, are in a
constant process of change, a process very difficult to follow due to poor
publicity (generally publicized only in the official gazette).
To this it may be added that the Israeli Supreme Court discarded the
traditional rule which required that penal norms be strictly interpreted,
in favour of a more relaxed attitude which seeks to find the aim and
purpose of legislation. 9 Such an attitude makes it more difficult for an
ordinary person (or even a legally trained one) to ascertain in advance
by reading the criminal legislation just how far the Penal Law extends.
8
9
See J. Hall, General Principlesof Criminal Law (2nd ed., 1960) 383.
Mizrahi v. State of Israel (1981) 35(iv) P.D. 421.
No. 1,.1996]
MISTAKE OF LAW
217
This stand has been at least partially adopted by the new code which
states, inter alia,that a penal provision should be reasonably interpreted
according to its aim. 10
The great expansion of the scope of criminal law, as described above,
raised the necessity to find means to exculpate defendants inadvertent
that they were committing offences. The solutions applied did not go
so far as to change the definition of the mental element, to require
knowledge of the law in addition to knowledge of the factual state of
affairs. Instead, it was preferred to rely on defences.
Theoretically speaking, the nature and scope of such "defences" may
differ according to the attitude adopted regarding the justification of the
rule that knowledge of the Penal Law is not a constitutent element of
the mens rea.
If one adopts the objective explanation one will tend to regard a
defence of ignorance of law as only a personal excuse and not as a
justification, so as not to "endanger" the validity of the objective societal
code of ethics. If, on the other hand, such a defence is regarded as a
means to rebut the presumption that every person is held to know the
contents of the penal law, it may be categorized as a justification
because it annuls an element of the offence (even though it is a hidden
element).
If one clings to the objective explanation then the defence of ignorance
of law may on principle apply also to offences lacking an element of mens
rea, while if such a defence is only regarded as a means to rebut the
presumption of knowledge of law, its natural scope of application would
be only offences of mens rea.
C. Israel Law Priorto the New Code
The Penal Law 1977, is based mainly on the Mandatory Criminal
Law Ordinance 1936, which had evolved from the principles of the
Common Law of England. The above code, explicitly provides that
10
The relevant provision is sec. 34U which reads as follows: "If a Law is capable of being
reasonably interpreted in various forms according to its aim the matter will be
decided according to the interpretation most favourable to the person who may be
liable according to such law".
218
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
"Ignorance of the law does not afford excuse for any offence unless
knowledge of the law by the offender is expressly declared to be an
element of the offence".
Three comments have to be made regarding this rule:
1) It is phrased vaguely enough so as to apply not only to definitions
of offences but also to rules restricting liability (defences);
2) The term "Law" used here was defined in the Interpretation
Ordinance"s in very broad terms, to formally include all kinds of legal
norms, whether penal, civil or administrative, whether contained in
Primary Legislation (Laws of the Knesset) or Secondary Legislation
(Rules by Administrative Bodies or even by-laws of local authorities);
3) The proviso to the above rule was of no practical significance as,
to the best of my knowledge, not one offence has been enacted which
expressly contains an element of knowledge of the law.
The Israeli Criminal Law has grappled with the necessity to limit the
all-embracing doctrine of "Ignorantiajuris neminem excusat" in the
following ways:
The first and oldest way makes use of the Common law defence of
"claim of right", which applies only to offences against property.12 In
some such offences, such as theft 13 and offences derived from them (such
as robbery),14 lack of claim of right is included as an ingredient of the
mental element. A claim of right exculpates a defendant Who had
committed a property offence while acting under a belief, even though
mistaken, of the existence of a right in relation to any property, or even
a right "in personam" (e.g., that somebody owes the defendant a sum of
money' 5). The defence applies both to mistake of fact or of law (e.g., the
law of property or the succession law). Still the defendant while enforcing
his real or mistaken right, may be held responsible for other offences
6
such as assault extortion if he uses aggressive means.
Another deviation from the general doctrine relating to "Ignorantia
juris",was achieved by the Supreme Court which, in a series of decisions," 7
11
12
13
14
15
16
17
Sec. 1 of the Interpretation Ordinance (New Version) (1 L.S.I. [N.V.] 5).
Sec. 14 of the Penal Law 1977.
Sec. 383 of the Penal Law 1977.
See sec. 402 of the Penal Law.
State of Israel v. Peretz (1975) 29(ii) P.D. 544.
Peretz (ibid.). It should be noted that if the defendant acted with a view to defraud
or injure, the defence was denied him: Kirsh and Segal v. A.G. (1963) 17 P.D. 1996.
Weinberg v. A G. (1965) 19(i) P.D. 150; Isaacsv. State of Israel (1973) 27(i) P.D. 371.
No. 1, 1996]
MISTAKE OF LAW
distinguished between mistakes relating to the criminal norm, which
forms no excuse, and mistakes relating to extra-penal norms, which may
be treated as mistakes of fact (or mistakes relating to the "state of
affairs") and, as such, afford an excuse.
This distinction may be justified theoretically by any of the
explanations given to the Doctrine of "Ignorantiajuris
neminem excusat":
applying the "objective approach" it may be argued, that a mistake
regarding an extra-penal norm does not contradict the accepted moral
code as to right and wrong as engulfed in the definition of offences and
the various doctrines of criminal law. A defendant does not claim that,
say, bigamy is not an offence but his defence boils down to saying "I
know bigamy is a criminal offence but I thought (albeit wrongly) that
my first marriage was invalid owing to a mistaken concept of Marriage
Law".18
It can also be said that extra-penal norms, such as those of Property
or Tax Law, are more technical in nature and their relation to common
ethical notions is less evident and therefore the common person is very
often ignorant as to their content.
However, from a purely logical or conceptual stand the distinction
may be attacked by stating that the penal norm embraces all the means
needed for its interpretation and application whether lingual or legal,
whether appearing in the criminal code itself, a dictionary, or in any
other law to which the definition of the offence refers.' 9 If one of the
elements of bigamy is "former marriage", logically speaking it makes no
difference if "marriage" is defined in the penal code itself, in some
dictionary or encyclopedia, or in the family code.
However, law is not only logic, but also (or mainly) a compromise
between needs, interests and logic. Thus, the above distinction survived
and a kind of test was proposed in order to help draw the line between
20
penal and extra-penal norms.
According to this test, if a mistaken norm has "a life of its own" within
a wide framework and is not created just to "serve" a penal prohibition,
18
19
20
See D. Bein, "Mistake as to Penal and Extra-Penal Law: Setting the Border or
Eliminating the Distinction?" (1976) 30 HaPraklit106.
S.Z. Feller, "The Border between Mistakes in the Criminal and the Extra-Criminal
Law" (1974) 5 Mishpatim 508.
Bein, supra n. 18. The test has been adopted by Justice G. Bach in the Supreme Court
decision of Weismark v. State of Israel (not yet published).
220
ISRAEL LAW REVIEW
[Is.L.R. Vol. 30
then it may be regarded as "extra-penal" even if the penal prohibition
uses such a norm as part of its definition.
Take, for instance, the term "income" in the Income Tax Ordinance.
This term was not created for the purpose of offences relating to evasion
of income but mainly for purely fiscal reasons. In fact, the criminal
offence relating to the evasion of income is only incidental to the general
income tax scheme.
The same is true regarding the term "marriage" which, generally
speaking,2 was not created just for the offence of bigamy, but mainly
as part and parcel of Family law.
The third means of narrowing the "Ignorantiajuris" rule, may be
22
found'both in literature and in such opinions as in the Shapira case,
in which it was ruled that reliance on an official act, such as a building
permit, even if subsequently shown to be void, may exonerate one from
criminal liability for the offence of building without a permit.2 3 It is not
a far cry from this to claim that reliance on an official's advice (e.g., preruling in matters of Tax Planning) may also form an excuse.
D. The Stand of the Law after the Reform
The new Code24 accepts the position that ignorance of law does not
afford an excuse. However, it makes it clear that this doctrine applies
only to "mistakes as to the existence of a criminal prohibition or as to
25
one's understanding of the prohibition".
As the defence of "mistake as to the State of affairs",26 the successor
of the former defence of "mistake of fact", 27 affords an excuse and in
offences of mens rea as distinguished from offences of negligence or strict
liability it need not be reasonable. 28 It seems that mistakes relating to
21
22
23
24
25
26
27
28
But in Israeli Criminal Law a special concept of"Marriage for the Purpose of Bigamy"
was created, (see Weinberg, supra n. 17).
Shapira v. State of Israel (1982) 36(i) P.D. 337, at 373 (per Ben Porat); Buronovsky
v. Chief Rabbis of Israel (1971) 25(i) P.D. 7, at 21.
At least if the offence requires mens rea and is not an offence of strict liability.
(1994) S.H., no. 1481, p. 348.
Sec. 34S of the new Code.
Sec. 34R of the new Code.
Sec. 17 of the Penal Law 1977.
Sec. 34R of the new Code.
No. 1, 19961
MISTAKE OF LAW
extra-penal norms, will continue to be dealt with as if they were mistakes
of facts affording a defence.29
The defence of "claim of right" was abolished except in offences such
as theft and its derivatives where lack of claim of right appears in their
definitions.30
The main innovation of the new Code is the introduction of an excuse,
albeit a limited one, according to which a mistake as to the existence of
a penal prohibition or its understanding will exonerate if the mistake
was "reasonably unavoidable". 31 This innovation warrants the following
comments:
a) This excuse makes the existence of a special defence of reliance on
an official act or advice superfluous.
b) The defence containing an element of "reasonableness" applies
both to offences of mens rea and to offences of negligence and strict
liability (which according to the new code are offences containing a
32
rebuttable presumption of negligence).
c) The concept of "reasonably unavoidable" is logically a difficult one.
The term "unavoidable" is prima facie an absolute one, a mistake is
unavoidable if every effort to avoid it is of no avail, but the addition of
"reasonably" qualifies the term "unavoidable" and it is enough in order
to be exculpated if the defendant can show that he took all "reasonable"
(not all "possible")steps in order to get acquainted with the penal norm.
In other words the test is one of negligence albeit a higher duty of
diligence is required than that usually required when dealing with
negligence.
29
30
31
32
See also Weismark, supra n. 20.
Sec. 383 of the Penal Law.
Sec. 34S of the new Code.
Sec. 22 of the new Code.
Essays on European Law and Israel
Aifredo Mordechai Rabello (ed.)
(1213 pages, US$ 90)
Containing contributions of legal scholars from
Europe, the United States and Israel on the
following topics:
LEGAL TRADITIONS - CIVIL AND COMMON LAW
Interpretation
Sources of Law; Codification
Private Law
Human Rights
EUROPEAN LAW
Private Law
Consumer Protection
Procedure Law
Private International Law; Conflict of Laws
Company Law
Taxation
European Union, Israel and Cyprus
Public and Constitutional Law
A detailed table of contents, as well as the text of the
volume's preface, appears on the internet at:
http://mishpatim.mscc.huji.ac.il/sacher/rabel97e.htm
Published by: Harry and Michael Sacher Institute for
Legislative Research and Comparative Law
Faculty of Law, Hebrew University of Jerusalem
P.O.B. 91905
Mount Scopus, Jerusalem, Israel
Fax: +972 (2) 588 2565, E-Mail: [email protected].
Internet Home-Page: http://mishpatim.mscc.huji.ac.il/sacher