No solution seems more gratifying to the modern theorist than to claim that an apparently serious problem is not really a problem at all. By branding nonfalsifiable propositions as nonsense, the Vienna circle of logical positivists discovered that the metaphysical concerns of others were really false problems. By ridding philosophy of false problems, Wittgenstein thought that he could let the fly escape from the bottle; he could release the philosophical spirit from its confounding constraints. Brainerd Currie brought this method to the law with his justly famous theory of false conflicts in the conflicts of laws. There was no need to worry about false conflicts; they were not real problems. The Model Penal Code takes the same tack toward the problem of mistake. To understand the Model Penal Code's claim that mistake is a false problem, we must first understand why judges and theorists have been confused and troubled about when mistakes about the issues bearing on liability should constitute a defense.
Criminal Law | Criminal Procedure | Law
George P. Fletcher,
Mistake in the Model Penal Code: A False False Problem,
Rutgers L. J.
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