(concurring):
I concur in the Court’s opinion that Barker, Martinez, Sturgis and Gonzalez have not presented this Court with any cognizable reason which could justify withdrawal of their guilty pleas.1 The Court in its decision does not reach the defendants’ contention that a reasonable belief in official authorization of their venture — an allegedly reasonable mistake of law — constitutes a legal defense *332to their convictions.2 Since this contention raises fundamental questions about the nature of criminal responsibility which are addressed by the dissents and which are of central importance to the criminal justice system, I am impelled to add a comment on this proposed defense.3 As a general matter, reasonable mistakes of law do not constitute a defense to criminal actions. However, I entertain serious doubts about the continued validity of this rule and do not think the rule should preclude the responsibility defense asserted in this case.
I.
The proper beginning point for a discussion of the proposed defense is the nature of criminal responsibility. Under what conditions should criminal sanctions operate on a wrongdoer? As will be developed below, the law in its specifics refuses to give a consistent answer. When asked the general question, however, the modern response of the law is perhaps most confidently and eloquently stated by Roscoe Pound:4
Historically, our substantive criminal law is based on a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.
One might immediately notice that the concept of a “free” choice to do wrong is merely a conclusion. It says nothing about how free the actor must be or what constitutes a choice. To understand the meaning of the concept, we must look to the concept it purportedly rejects and consider the extent to which it is successful in manifesting this rejection.
The concept that the criminal sanction operates only on the free choice to do wrong was once not accepted at all and is still today accepted only in part. In early English — more correctly Anglo-Germanic tribal — law, criminal liability was established by the simple commission of a forbidden act.5 The actor’s intent was irrelevant since the law punished the act itself. An accidental killing was as much a murder as an intentional killing. Under the influence of canonist law, particularly as interpreted by Bracton,6 the common law began in the late 13th and early 14th centuries to abandon this view.7 That process continues up to this day.
The extent to which the concept of “absolute” criminal liability — criminal liability imposed on the basis of an act and nothing else — remains in the law today may be seen by a short review of *333current doctrine. First, of course, there is the requirement of actus reus — cognizable criminal activity must include a physical act.8 Second, in the 19th century, the various legislatures of England and the American states enacted so-called “public welfare” offenses for which criminal liability was largely absolute.9 Third, and most relevant to the issue in this case, the law ordains that certain elements of a crime otherwise transformed by the modern view are established by the mere commission of the proscribed act regardless of the subjective intent of the actor.
To fully explicate these last stated “exceptions” to the modern view, we must be aware of the polar position to the early English absolute liability rule, a position which present law only distantly approaches. If the law were totally committed to proscribing only the free choice to do wrong, it would permit a wide-ranging inquiry into the subjective motivation of the particular act in dispute and into whether the law should consider that motivation a legally “free choice” to do wrong. To take some contemporary, not-so-random examples of what that might mean: does a poverty-stricken and otherwise deprived black youth from the central city area freely choose to do wrong when he kills a Marine who taunted him with a racial epithet?,10 or indeed, when he steals or uses drugs?; does a “modern Jean Val Jean”, stealing to feed his family, freely choose to do wrong?;11 does a narcotics addict freely choose to do wrong when he buys drugs for his own use?12 does a super-patriotic citizen steeped in cold war ideology freely choose to do wrong when he burglarizes the home of an individual whom he suspects of treasonous activity?
We are uneasy in contemplation of these situations; the law reflects this by reducing the scope of the inquiry into criminal responsibility by use of conclusive presumptions. The law in its most demanding view of criminal responsibility establishes that if an individual specifically intends to commit an act and if that act is proscribed by law, therefore the individual freely chose to do wrong.13 But, of course, there is no necessary or even empirical — as far as we have or could have evidence on the proposition— connection between the intent to commit the act and an intent to freely do wrong. The concept of the “vicious will” is reduced to the presumptively vicious will. Furthermore, the law in most instances does not even require this intention to commit the act. It is enough that the act was committed and from that the law presumes intent unless the actor can demonstrate the circumstances were such that he was under an honest or reasonable misapprehension of the salient facts surrounding the act'.14 Finally, *334in limited circumstances the law punishes despite even a perfectly reasonable misapprehension of fact.15
The law’s unwillingness to depart from the concept of absolute liability may be explained by the arguments traditionally advanced in support of the rule that ignorance or mistake of law is not a defense,16 the particular form of absolute liability in issue here. Those traditional arguments are three. First is that most concisely advanced by Jerome Hall:17
To permit an individual to plead successfully that he had a different opinion or interpretation of the law would contradict the . . . postulates of a legal order. For there is a basic incompatibility between asserting that the law is what certain officials declare it to be . . . and asserting, also, that . . . the law is what defendants or their lawyers believed it to be. A legal order implies the rejection of such contradiction.
On its face this argument would seem to ignore the distinction between justification for an act, which does indeed confirm its legality, and excuse for an act, which assumes illegality of the act but excuses the principal from criminal sanction because he did not freely choose to do wrong.18 The latter in principle implies no validation of the act. Indeed, it is in its nature an express rejection of any such view. Hall’s argument also could not be that the law imposes an affirmative duty to discover what the law is since “it is very clear that the guilt of failing to obey [this duty] would bear no proportion to that of disobeying the principal command if known, yet the failure to know would receive the same punishment as the failure to obey the principal law.” 19
Hall’s argument assumes more substance when viewed in light of the second traditional argument usually attributed to Justice Holmes:20
The true explanation of the rule is the same as that which accounts for the law’s indifference to a man’s particular temperament, faculties, and so forth. Public policy sacrifices the individual to the general good. It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all *335would be to encourage ignorance where the law-maker has determined to make men know and obey. .
Holmes is not speaking of encouraging ignorance of the law-breaker but of encouraging ignorance of others. A failure to punish an actor might not be inconsistent with concepts of moral blameworthiness but very well might undermine the central purpose of the criminal law— “to induce external conformity to rule.” 21
Holmes properly applies his argument in light of the purposes of the criminal law. The law in imposing absolute liability is not concerned with individual justice to the wrongdoer but with the interests of the injured party or his surviving kin and with the general reaction in society (both potential wrongdoers and those sympathetic with the injured party) to a failure to punish the act. The subtle question of the wrongdoer’s intent is certainly of marginal interest to these citizens and their perception of the seriousness with which the criminal law accomplishes its purposes. Furthermore, by placing the wrongdoer in custody he may be prevented from committing more innocent, yet reprehensible acts in the future. The purpose of the criminal law is to protect society from harmful acts and if this interest were unbounded by other social interests there could be no limit to the amount or occasion of criminal punishment if it caused some marginal perception of a decrease in the incidence of harmful acts.22 In light of this purpose of the criminal law the existence of excusing conditions might seem anomalous indeed since it is the individuals who most likely will benefit from an excusing condition that need the greatest amount of “deterrence.”
The law does not fully accept this position and, to my mind, rightly so as the following countervailing arguments suggest. It does not seem realistic to assume that a purely objective criminal sanction will deter harmful acts by those who by definition did not think their actions were proscribed by law or otherwise lacked the free choice not to perpetrate those harmful acts. This is not merely an empirical statement, as the assertion that an absolute sanction will increase deterrence is not, since no evidence upon which the truth or accuracy of these propositions does exist or could exist. To determine the guilt or innocence of one person on the basis of the effect of that determination on others seems inconsistent with the concept that human beings should not be used as means to an end, but are ends in themselves.23 Furthermore, to determine the guilt or innocence of an individual on the basis of a prediction of future dangerousness involves the making of assumptions about individuals without a sound empirical basis,24 and would thus be inconsistent with modern notions of due process.25 To effect retribution upon an individual without consideration of his state of mind seems too barbarous for discussion and in any event the law has moved beyond retribution as a prime justification for the criminal sanction.26
*336The question thus posed by these competing lines of argument is the extent to which the law accepts the concept of the free choice to do wrong as the basis for criminal liability. Holmes correctly recognized this fundamental question when he stated: 27
If punishment stood on the moral grounds which are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes.
There is, to be sure, somewhat of a “regrettable peremptoriness of tone”28 to this statement inconsonant with modern sensibilities, but it phrases the question as bluntly as it should be phrased. Holmes rejects the notion that the law is enacted and administered solely on the moral grounds he has noted. However, few today would seriously dispute Judge Tuttle’s observation that “the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts . . ..” 29 There is no reason to believe that this development ended in 1881. Thus, it may be seen that the tension between the two bodies of argument discussed above produces a delicate accommodation between interests of social order and individual rights, between vengeance and moral concepts of guilt. The law does not resolve these arguments. They exist in a perpetual but shifting balance producing disparate and at times illogical answers to various issues of criminal responsibility. The balance to be struck at any one point in time must not be gleaned from logical analysis of these arguments alone, but from conventional morality — the commonly held views of the people in the American community as viewed through their legal and political tradition. 30
The third traditional argument against a defense of mistake of law is more directly a concern of judges alone. It was stated by John Selden: “Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will plead, and no man can tell how to confute him.”31 The gravamen of this argument is that the state of our knowledge is insufficient to detect the difference between a genuine mistake and a feigned mistake. It expresses as well as can be expressed a fear that opening up the law to potentially difficult and unfamiliar information will destroy its orderliness and lead to manipulation of its rules. However, the argument is ultimately unpersuasive for reasons best expressed by Justice Holmes.32
*337II.
The tension between the arguments in favor of absolute liability and the arguments in favor of liability based only on the free choice to do wrong has produced some movement toward recognition of a defense of mistake of law in limited circumstances. The issue really posed by defendants’ contention is whether these “exceptions” might be extended to cover the proposed defense of Barker, Sturgis, Martinez and Gonzalez. This question is not to be resolved by an a priori choice among the arguments discussed in Part I above. Rather such an extension requires a process of close analogy between the proposed exception defendants would create and the presently recognized exceptions to the concept of absolute liability. If no significant distinctions emerge from this comparison, we would be justified in recognizing the defense if, of course, we were satisfied that result was consistent with the conventional morality. It is in this manner that the doctrine of stare decisis channels and controls judicial discretion without embedding legal rules in concrete.
I begin by comparing the defense proposed by Barker et al. with the so-called “mistake of fact” defense, which is merely an extension of the notion that accidental commission of a crime is a defense to most criminal charges. The justification offered for the distinction between mistakes of fact and law is that mistakes of fact are particular to the incident and often cannot be foreseen and prevented through the exercise of reasonable diligence.33 However valid this distinction might be when applied to ignorance of the existence of a particular law, it certainly has much less validity when applied to reasonable mistakes in the application of legal principles to a particular factual situation. The distinction between “law” and “fact” in such circumstances is tenuous indeed as our experience in the field of administrative law and in defining the scope of jury questions would indicate. For example, if a person mistakenly believes another person is acting “negligently” or “recklessly”, is his mistake — upon which we may assume he has predicated a criminal action — one of fact or law? The problem created by this question has seemingly resulted in the extraordinary holding that a mistaken claim of private right of ownership is a mistake of fact.34
*338Against this background, the leading case of People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938) assumes a different significance. To be sure, Weiss can be distinguished on the basis of legislative intent. But what is the principle upon which this legislative intent is based? In Weiss the principle motivating the legislature and which the court itself reasons out is that a mistake concerning the defendant’s lawful authority negatives the requisite criminal intent. The statute itself is a recognition of a mistake of law defense and thus is itself a source of law as much certainly as a case.35 Whether the principle of the statute is to be applied beyond its immediate intent is simply a question of whether the principle otherwise persuades us or may be distinguished from the situation sub judice. The fact that Section 1250 of the New York Penal Law in effect in 1938 is not operative in the District of Columbia in 1972 is not sufficient ground to distinguish its principle.36
*339The issue thus framed is whether Weiss, when viewed against the background of the attenuated distinction between fact and law, convinces us that the defendants have alleged a legally cognizable defense. First, it would seem that their defense is factually indistinguishable from Weiss and does involve a case where the distinction between fact and law is more “nice than obvious”37 in that it depends on the authority of one who could reasonably be viewed as a government agent.38 Judge Wilkey’s dissent presents the factual material in support of this proposition. Second, it would seem that the mistake of fact defense, at least when concerned with a reasonable mistake,39 is firmly settled in *340common morality. The limited exception proposed by the defendants would not, it would appear, significantly depart from the principle of conventional morality which finds recognition in the defense of mistake of fact. Furthermore, I have previously stated my view that the criminal law should be opened up to new behavioral information to better approximate, in limited situations, the ideal that the law punishes only the free choice to do wrong.40 I, therefore, agree with the dissents to the extent they find that the defendants have alleged a valid defense.
III.
Even if I did not agree with the dissents on this point, I would still think that, but for their waiver by plea of guilty, the defendants should not be precluded from asserting their invalid defense to the jury. There are many “escape valves” in the law which permit largely unreviewable discretion for certain officials to mitigate harshness caused by the law’s inability to meet its highest ideals, including the ideal of punishing only the free choice to do wrong. Those escape valves are sentencing discretion,41 prosecutorial discretion,42 pardon and parole discretion,43 and jury nullification discretion.44 The first three forms of discretion have a long tradition of recognizing mens rea defenses as grounds for mitigation of punishment or for vindication of the offender.45 Indeed, the early common law view was that an individual who accidentally killed another was guilty of murder but was entitled to a pardon as of right!46 This “minimalist” approach47 to the problem *341of criminal responsibility has found approval in this Court.48 In a previous opinion, I have indicated that jury nullification is a permissible escape valve and should be forthrightly recognized as such.49 Since the Court is en banc, I would adhere to those views.
Despite these views, I remain convinced that the convictions should be affirmed on the basis of the Court’s opinion.
. There is a stronger case for waiver by plea of guilty here than was present in United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (1971). Since the Court is en banc, I would adhere to my dissenting views expressed in Sambro but consider the case sub judice as distinguishable. It is distinguishable because here the government did not make any representation to these defendants that any particular effects would occur or not occur upon a plea; nor did the government represent to them that they had a duty to remain silent. Even if we might take the extra step of holding the government responsible for the sense of duty or “code” by which the defendants apparently felt bound, we cannot vitiate their plea bargain on that basis. The Court’s opinion is conclusive on the issue. I emphasize one point which is particularly persuasive to me. The District Court and the defendants’ attorney both very carefully sought to disabuse the defendants of any notion that they were required to plead guilty and also sought to uncover their motive in pleading guilty. These efforts were unsuccessful. In light of the diligent efforts of their attorney and the careful interrogation by the District Judge, one must conclude that the defendants’ pleas were voluntary. They made a bargain with the government and were under no apprehensions as to what that bargain meant. Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), we must enforce that bargain.
. This contention is apparently directed against all counts in their indictment but seems most appropriate in light of the offenses charged in Counts 3, 4, 5, and 7. The Court vacates these four counts pursuant to the so-called Hooper doctrine as enunciated in United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145, 1157-58 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974). I objected to the use of the Hooper doctrine in Greene, 489 F.2d at 1174 (Statement of Bazelon, C. J.) and do not approve of its use in this case.
. Compare United States v. Cox, 165 U.S.App.D.C. 57, 60, 509 F.2d 390, 393 (1974) at 1 (Leventhal, J., concurring).
. R. Pound, Introduction, F. Sayre, Cases on Criminal Law (1927), quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4, 72 S.Ct. 240, 96 L.Ed. 288 (1952). For similar statements, see United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, 1151, cert. denied 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973) (Statement of Wilkey, MacKinnon & Robb, JJ.); id. at 1241 (Statement of Wright, Bazelon, Robinson & Tamm, JJ.); United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 985 (1972) (en banc); Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50, 54 (1966) (en banc) citing Driver v. Hinnant, 356 F.2d 761, 764 (4th Cir. 1966); Lee v. Dangar, Grant & Co. [1892] 2 Q.B. 337, 347-49 (C.A.); 4 W. Blackstone, Commentaries 20-21, 27 (1854); 3 E. Coke, Institutes of the Laws of England 56 (1797).
. 2 W. Holdsworth, A History of English Law 50-54, 258-59 (4th ed. 1936); 3 id. at 310-14, 371-75. See also N. Hurnard, The King’s Pardon for Homicide Before A.D. 1307, at 68-130 (1969); T. Plunknett, A Concise History of the Common Law 444-45, 463-65 (1956) and authorities cited; 1 F. Pollack & F. Maitland, The History of English Law 52-55 (2d ed. 1923).
. 2 W. Holdsworth, supra note 5, at 258-59.
. 3 id. at 372-75. See also O. Holmes, Jr., The Common Law 40-51 (1881).
. See G. Williams, The Criminal Law — General Part 1-2 (2d ed. 1961). Similarly criminal liability is gradated in part on the basis of resulting harm, regardless of the actor’s intent, as in inchoate crimes. See Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U.Pa.L.Rev. 1497 (1974).
. See Morissette v. United States, 342 U.S. 246, 252-59, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933).
. This was the situation in United States v. Alexander & Murdock, 152 U.S.App.D.C. 371, 471 F.2d 923, 928, cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1973). For other incidents of criminal activity based in part on racial animosity, see United States v. Robertson, 165 U.S.App.D.C. 325, 507 F.2d 1148 (1974); Brief for the United States at 3-4; United States v. Harris, 164 U.S.App.D.C. 370, 505 F.2d 477 (1974).
. This was the alleged situation in Everett v. United States, 119 U.S.App.D.C. 69, 336 F.2d 979 (1964).
. This was the situation in United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139 (D.C.Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973). See also Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966) (en banc).
. The classic formulation is Justice Holmes in Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 51 L.Ed. 1047 (1907).
. The central problems in this area relate to concepts of “diminished responsibility.” It is established that at least a reasonable mistake of fact relating to the circumstances of an act negates criminal responsibility. See G. Wil*334liams, supra note 8, at 140-42; R. Perkins, Criminal Law 939-44 (2d ed. 1969); J. Hall, General Principles of Criminal Law 361-68 (2d ed. 1960) and authorities cited therein. The issue arises whether the effect of alcohol, drugs or even physical and mental duress so affects the operation of an individual’s perception of the facts as to render him not criminally responsible. See United States v. Alexander and Murdock, 152 U.S.App.D.C. 371, 471 F.2d 923, 948-52 & n. 69, cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1973) (Bazelon, C. J., dissenting on this point) and authorities cited. See also People v. Wolff, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 595 (1964); Model Penal Code §§ 2.08-09, 4.02 (Prop. Official Draft 1962).
.This occurs in absolute liability crimes, see note 9 supra, and in certain elements of otherwise contingent liability crimes, such as in statutory rape, bigamy and felony murder. See Packer, Mens Rea and the Supreme Court, 1962 Supreme Court Rev. 107, 140-42. Of course, the law also recognizes absolute liability to the extent it does not take full account of duress, necessity of circumstances, intoxication or addiction, and indeed mistake of law. See Fletcher, The Individualization of Excusing Conditions, 47 So.Cal.L.Rev. 1269, 1273-99 (1974). See also examples cited in notes 10-12 supra.
. One might quickly dispose of the argument that everybody is “presumed to know the law”. As an empirical matter, there is insufficient evidence that the individual citizen knows either what the law is or how it should be applied in particular circumstances. See G. Williams, supra, note 8, at 289-90, quoting the observation by Maule, J. that “everybody is presumed to know the law except His Majesty’s judges, who have a Court of Appeal set over them to put them right.”
. J. Hall, supra note 14, at 383, applied in Hopkins v. State, 193 Md. 489, 498, 69 A.2d 456, 460, appeal dismissed, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950).
. See Fletcher, supra note 15, at 1298-99; Ryu & Silving, Error Juris: A Comparative Study, 24 U.Chi.L.Rev. 421, 433 (1957).
. O. Holmes, supra note 7, at 48.
. Id. See also United States v. Calley, 46 C.M.R. 1131, 1184 (Army Ct. of Mil.Rev.), aff’d, 22 U.S.C.M.A. 534, 541-44 (1973); Beverly’s Case, 4 Co.Rep. 1236, 76 Eng.Rep. 1118 (K.B. 1603) (Coke, J.).
. Id. at 49. Cf. the subsidiary justification of prevention of mob violence discussed in Schulhofer, supra note 8, at 1511-14.
. Cf. Furman v. Georgia, 408 U.S. 238, 395-96, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C. J., dissenting); id. at 453-56, at 92 S.Ct. (Powell, J., dissenting).
. O. Holmes, supra note 7, at 43, discussing I. Kant, The Philosophy of Law, pt. 2, § 49, at 195-97 (W. Hastie trans. 1887), Cf. F. Zimring & G. Hawkins, Deterrence 38 (1973): “Why should his grief pay for their moral education.”
. Cf. Furman v. Georgia, 408 U.S. 238, 355, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J. concurring); Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1101-07 (1969); Dershowitz, Preventitive Confinement: A Suggested Framework for Constitutional Analysis, 51 Texas L.Rev. 1277 (1973); Morris, The Future of Imprisonment: Toward a Punitive Philosphy, 72 Mich.L.Rev. 1161, 1164-73 (1974). See also Schulhofer, supra note 8, at 1588-99.
. Cf. Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 644-48 (1974) and cases cited therein. See also Baxstrom v. Herald, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973).
. See Furman v. Georgia, 408 U.S. 238, 342-45, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J. concurring); id. at 452-54, 92 S.Ct. *3362726 (Powell, J. dissenting); Williams v. New York, 337 U.S. 241, 247-48, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Cf. H. Packer, The Limits of the Criminal Sanction 37-39, 62 (1968).
. O. Holmes, supra note 7, at 45.
. Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 65 L.Ed. 185 (1920).
. Novak v. Beto, 453 F.2d 661, 672 (5th Cir. 1971), rehearing en banc denied, 456 F.2d 1303 (5th Cir.), cert. denied sub nom. Sellars v. Beto, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972) (Tuttle, J. dissenting).
. See O. Holmes, supra note 7, at 50-51 (the balance is reflected in the concept of the “reasonable man”); cf. Furman v. Georgia, 408 U.S. 238, 295-300, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J. concurring); id. at 360-70, 92 S.Ct. at 2788-2793 (Marshall, J. concurring); id. at 385-90, 92 S.Ct. at 2801-2804 (Burger, C. J. dissenting); id. at 434 — 43, 92 S.Ct. at 2826-2830 (Powell, J. dissenting); United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1142-43 (1972) (Bazelon, C. J. concurring in part, dissenting in part); Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221, 243-54, 285-311 (1973).
. J. Selden, Table Talk-Law 61 (3d ed. 1716). For similar statements of this argument, see United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, 1181-85, cert. denied, 414 U.S. 980 (1973) (Leventhal, J.); People v. O’Brien, 96 Cal. 171, 176, 31 P. 45, 47 (1892).
. If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try. . . . Furthermore, now that parties can testify, it may be doubted whether a man’s knowledge of the law is any harder to investigate than many questions which are gone into. The difficulty, such as it is, would be met by throwing the burden of proving ignorance on the lawbreaker.
*337O. Holmes, supra note 7, at 48. The argument that the fact of knowledge of the law is too difficult to be ascertained often reflects a distrust of the powers of the jury, Thomas v. The King, 59 Commonw.L.Rep. 279, 309 (High Ct. of Austr. 1937) (Dixon, C. J.). Compare United States v. Moore, 158 U.S.D.C. 375, 486 F.2d 1139, 1181-85, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973) (Leventhal, J.) with United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (1972) (Leventhal, J.). As for Holmes’ argument that mistake of law might be an affirmative defense, I would argue that such a contention is inconsistent with In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See United States v. (La Vance) Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145, 1174-80 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974) (Statement of Bazelon, C. J.). However, it would seem that the difficulties of proving knowledge of the law require that the defendant bear the burden of going forward on the issue, with the ultimate burden only resting on the government.
. See J. Hall, supra note 14, at 376; 1 M. Hale, Pleas of the Crown 42 (1680); Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv.L.Rev. 75. 78 (19081.
. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Scott v. State, 29 Ala.App. 110, 192 So. 288 (1939); authorities cited and discussed, G. Williams, supra note 8, at 304 — 05, 306 — 44.
Another area in which the similarity of mistakes of fact and mistakes in the application of the law to certain facts has caused some attenuation of the distinction between fact and law is bigamy. The prevailing American rule is that even a mistake of fact is not a defense to a charge of bigamy. See Anno., 56 A.L.R.2d 915 (1957). However, those courts which have eroded this strict absolute liability have in some instances permitted a reasonable mistake as to the legal validity of a divorce to be admitted as a defense. See People v. Vogel, 46 Cal.2d 798, 299 P.2d 850 (1956); Long v. State, 44 Del. 262, 65 A.2d 489 (1949); R. v. Gould, [1966] 2 Week.L.Rep. 643 (C.A.); The King v. Carswell, [1926] N.Z.L.Rep. 321 (C.A.); Thomas v. The King, 59 Commonw.L.Rep. 279 (High Ct. of Austr. 1937); cases cited Anno., supra, at 933-38. Cf. Forbes v. Brownell, 149 F.Supp. 848, 851 (D.D.C.1957). See also Alexander v. United States, 78 U.S.App.D.C. 34, 136 F.2d 783, 784 (1943) (dictum). The scholarly criticism directed in support of this result *338has focused on the tenuous distinction between a mistake of fact and of law in such circumstances. See J. Hall, supra note 14, at 400-01; G. Williams, supra note 8, at 178-83; cf. R. Perkins, supra note 14, at 945-48.
The so-called “claim of right” cases and the bigamy cases have led some commentators to suggest that a mistake as to purely “civil” law is exculpatory while a mistake as to the “criminal” law is not. See G. Williams, supra at 344-45. The Model Penal Code, §§ 3.04(1), 309(l)(b), Commentary at 18, 76-77 (Tent. Draft No. 8 1958), accepts this distinction but makes absolutely clear that a mistake as to the legal requisites of a search or arrest is a mistake as to criminal law.
One area of law in which mistake of law is apparently recognized as a defense concerns inchoate crimes which are not “mala in se.” It has been held that such a mistake is a defense to a charge of conspiracy. See Landen v. United States, 299 F. 75 (6th Cir. 1924); Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946). Cf. Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745 (1945) (solicitation crime apparently requires knowledge of the illegality of the solicited acts). See also the leading cases of People v. Powell, 63 N.Y. 88 (1875); Commonwealth v. Gormley, 77 Pa.Super. 298 (1921); Commonwealth v. Benesch, 290 Mass. 125, 194 N.E. 905 (1935). This rule has been criticized in dictum, United States v. Mack, 112 F.2d 290, 292 (2d Cir. 1940), and in dissent, Keegan v. United States, supra 325 U.S. at 506, 65 S.Ct. 1203 (Stone, C. J. dissenting). It has been trimmed back by holdings that the government need not prove actual knowledge of the law in question, this knowledge being inferred from facts and circumstances. See United States v. Thaggard, 477 F.2d 626, 631-32 (5th Cir. 1973); Cruz v. United States, 106 F.2d 828, 830 (10th Cir. 1939). See also the critical discussion in United States v. Boardman, 419 F.2d 110, 114-15 (1st Cir. 1969); United States v. Spock, 416 F.2d 165, 178 n. 29 (1st Cir. 1969). The rule to the extent it is valid, is limited to prosecutions for inchoate crimes and not prosecutions for completed crimes. Compare Okamoto v. United States, 152 F.2d 905 (10th Cir. 1945) with Warren v. United States, 177 F.2d 596, 600 (10th Cir. 1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584 (1950).
The harshness of the rule that mistake of law is not a defense is also one factor responsible for the parallel rule that penal statutes should be strictly construed in favor of the accused. See United States v. Bass, 404 U.S. 336, 347 — 48 (1971); United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426, 427 (1974) cert. granted, 420 U.S. 923, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975). Compare this rule of construction with Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1958).
. See Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966) (en banc); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451, 455 (D.C.Cir. 1966); cf. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-92, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan’s Contribution, 82 Yale L.J. 258 (1972).
. In any event, it may be seriously doubted whether the court’s ruling in Weiss was as much predicated upon actual legislative intent as a presumed legislative intent implied by the court in the exercise of its own policy making discretion. The statutory language “without lawful authority” could easily bear a meaning limited to an objective determination that the defendants in fact did have authority for their actions, as Judge Crane in dissent and the appellate division below apparently held. Cf. G. Williams, supra note 8, at 28-29. The court thus presumes a legislative intent to depart from the settled rule that mistake of law is no defense from the bare statutory language. Surely, the court’s implicit reasoning is that its result is a better approximation of the true principle of criminal liability in such circumstances than the rule that mistake of law is no defense. Compare the reasoning in Weiss with State v. Stern, 526 P.2d 344, 348-52 (Wyo.1974) and authorities cited therein.
There are a number of difficulties with Weiss which need not be fully explored. Its significance in the development of modem no*339tions of criminal responsibility may be seen by a brief consideration of the common law background of the case. See generally Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 673, 685-98 (1924). Of particular interest is the rule recognized by the Model Penal Code, § 3.07(4)(a), Commentary at 64-65 (Tent. Draft No. 8 1957); cf. id. § 3.03(3)(b), that a private person called to the aid of a police officer is justified in using force if he entertains an honest belief that the officer who calls his aid is acting lawfully. See Jefferson v. Yazoo & M.V.R.R., 194 Miss. 729, 11 So.2d 442 (1943); State v. Ditmore, 177 N.C. 592, 99 S.E. 368 (1919); La Chance v. Berlin St. Ry. Co., 79 N.H. 291, 109 A. 720 (1919); Purdy v. State, 60 Texas Cr.App. 130, 131 S.W. 558 (1910); Firestone v. Rice, 71 Mich. 377, 38 N.W. 885, 15 Am.St.R. 266 (1888); McMahan v. Green, 34 Vt. 69, 80 Am.Dec. 665 (1861). But see Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253 (1851); Elder v. Morrison, 10 Wend. (N.Y.) 128, 25 Am.Dec. 548 (1833). This rule applies only if the officer is known as such and is acting in an official capacity. See Cincinnati, N. O. & Tex. P. Ry. Co. v. Cundiff, 166 Ky. 594, 179 S.W. 615, 1916C Ann.Cas. 513 (1915); Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847). Cf. the Good Samaritan “mistake of fact” defense discussed in United States v. Kartman, 417 F.2d 893, 895-96 & n. 5 (9th Cir. 1969); United States v. Grimes, 413 F.2d 1376 (7th Cir. 1969). This “call to aid” rule is explicitly recognized as an exception to the rule that mistake of law is not a defense, this latter rule being a restriction on the police officer himself. Model Penal Code, § 3.09(l)(b) (Tent. Draft No. 8 1958). Weiss, if viewed as an extension of a general “call to aid” rule, as its facts suggest, indicates a breakdown in the strict distinction between mistakes of fact and of law when applied to the heavily fact-laden law of search and seizure or arrest, an area of law also on the borderline between “civil” and “criminal” law. See also Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1347-48 (2d Cir. 1972).
. Local 761, Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961).
. The defendants’ mistake of law is largely a mistake as to Hunt’s authority — i. e. whether he had reasonable grounds for ordering the burglary. As is implicitly suggested by the “call to aid” rule suggested in note 36, supra, a mistake as to the lawful authority of a government official, which is what Hunt allegedly presented himself as, is sufficiently close to a mistake of fact and sufficiently similar to a mistake as to civil law — a mistaken “claim of right” as it were — that exculpation should be permitted. See also United States v. Calley, 22 U.S.C.M.A. 534, 541-44 (1973); G. Williams, supra note 8, at 301. Compare id. at 160-63 (suggests that ignorance of the law may cause ignorance of facts which would have been known if the defendants had known the law).
This analysis is buttressed by reference to the fact that these defendants were formerly citizens of a nation which arguably did not adhere to Anglo-American concepts of permissible search and seizure. In common law contract doctrine, a mistake as to foreign law was considered a “mistake of fact” and grounds for equitable intervention. See E. H. Taylor, Jr. & Sons v. First Nat’l Bank, 212 F. 898, 902 (6th Cir. 1914) (dictum); Miller v. Bieghler, 123 Ohio St. 227, 174 N.E. 774 (1931); cases cited and discussed Anno., 73 A.L.R. 1260 (1931). In the Federal Republic of Germany, a mistake as to German law by a foreigner is considered a defense to criminal charges. See H. Jescheck, Lehrbuch des Strafrechts 298-99 (1969).
. See Long v. State, 44 Del. 262, 65 A.2d 489 (1949); People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964); United States v. Short, 4 U.S.C.M.A. 437 (1954); cf. O. Holmes, supra note 7, at 50-51.
That exculpation on the basis of reasonable mistakes of law is consistent with conventional morality may be seen in decisions of the Bundesgerichthof or Supreme Court of the Federal Republic of Germany on this subject. The discussion that follows is drawn from Judgment of March 18, 1952, 2 BGHSt 194; H. Jescheck, Lehrbuch des Strafrechts 294-306 (1969); Ryu & Silving, supra note 18, at 450-58, 461-65. Originally, the Supreme Court of the Reich had held that mistake as to civil law, not the law defining the elements of the crime for which the individual is being prosecuted, was exculpatory but that a mistake as to criminal law was not exculpatory. In the 1952 *340decision cited above, the Bundesgerichthof found this distinction untenable and rejected it in favor of a rule that all reasonable mistakes of law were exculpatory. Mistakes of fact, it found, were different and if made honestly and in good faith were exculpatory. As to the requirement of reasonableness in mistakes of law, the Bundesgerichthof had this to say:
[The defendant] must . . . , in everything he is about to undertake, call to his consciousness whether it agrees with the dictates of the legal [order]. He must dispel doubts by thought and inquiry. This requires an exertion of conscience; the degree [of exertion] is determined by the circumstances of the case and by the life environment and occupation of the individual. If, notwithstanding exertion of conscience as thus expected, he could not acquire the insight into the wrongfulness of his conduct, the error was invincible and the act unavoidable. ... In this case, no blame of guilt can be raised against him.
Compare Judgment of Oct. 6, 1953, Juris.Rund. 188 (BGHSt), discussed Ryu & Silving, supra at 457 with cases cited note 10 supra. Cases decided after the Judgment of March 18, 1952, seem to take a very liberal view of mistake of fact, to include as mistakes of fact all mistakes as to law which do not directly concern the definition of the elements of the offense.
. See United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, 1260 (D.C.Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed. 224 (1973) (Bazelon, C. J. concurring in part, dissenting in part); United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 1022-34 (1972)(Bazelon, C. J. concurring in part, dissenting in part); United States v. Alexander and Murdock, 152 U.S.App.D.C. 371, 471 F.2d 923, 948-51, cert. denied, Murdock v. U. S., 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1973) (Bazelon, C. J. concurring in part, dissenting in part). See also United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1138 (1972) (Bazelon, C. J. concurring in part, dissenting in part); United States v. Robertson, 165 U.S.App.D.C. 325, 507 F.2d 1148 (1974).
. As Judge MacKinnon notes in his dissent, Judge Gesell has exercised his sentencing discretion in favor of these very defendants due to the fact that they were “duped” by government officials. Other famous examples of the use of sentencing discretion in mens rea type defenses include the case of R. v. Dudley & Stephens, [1884] 14 Q.B.D. 273, discussed Ma-tin, In Warm Blood: Some Historical and Procedural Aspects of Regina v. Dudley and Stephens, 34 U.Chi.L.Rev. 387 (1967), and the bigamy case of R. v. Wheat & Stocks, [1921] 2 K.B. 119, discussed in Weigall, Mens Rea and Bigamy, 16 Austr.L.J. 3 (1942).
. See generally United States v. Ammidown, 162 U.S.App.D.C. 28, 497 F.2d 615 (1973).
. See Ex parte Grossman, 267 U.S. 87, 120-21, 45 S.Ct. 332, 69 L.Ed. 527 (1925); State v. Leak, 5 Ind. 359, 363 (1854); 2 Hawkin’s Pleas of the Crown, ch. 37, § 8, at 533 (8th ed. J. Curwood 1824).
. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1142 (1972) (Bazelon, C. J. concurring in part, dissenting in part).
. See 3 W. Holdsworth, supra note 5, at 312-13, 371-72.
. See N. Hurnard, supra note 5.
. See Fletcher, supra note 15, at 1307.
. See United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, 1185-86, 1203-05, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973) (Statement of Leventhal & McGowan, JJ.). Part of the minimalist approach is a reliance on the legislature to resolve any issue raised by the suggested development of judicially created and judically administered principles. That is, the doctrine of stare decisis causes previous judicial decisions to be embedded in concrete subject only to legislative action.
. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1138 (1972) (Bazelon, C. J. concurring in part, dissenting in part). See also Note, Towards Principles of Jury Equity, 83 Yale L.J. 1023 (1974).