T HE ESSENCE OF CULPA BILI T Y

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his desire to go the Knicks game at 100 and the potential harm to others at 10 (in terms of his desire to avoid it). Or he might value the Knicks game at 10, but the harm to others at 9. We contend that it is the choice, to pick the game over others’ interests, whatever values David gives these variables, that makes David’s conduct culpable.

However, we believe that an “indifference as attitude” proponent could be placing blame earlier in the calculation – to the precise amount of weight given to the interests of others. David is indifferent because he is not giving the appropriate weight to the interests of others. But let us assume that David decides not to run the light, still valuing others’ interest at 9, but not being a basketball fan, weighing the interest of the game at 1. Here, although David does not run the light, his value system is still such that were he to become a fan, he would be willing to impose great risks on others to get to a Knicks game. Do these theorists wish to punish David for stopping at the light because he in fact gives the interests of others too little weight? Alternatively, is David indifferent if he correctly assesses the value of others’ lives at 100 but grossly overvalues the Knicks game at 1,000 and thus runs the light? If so, his indifference is being manifested in his choice, not merely in the weights of others’ interests that inform the choice.

3. Bizarre Metaphysical Beliefs and Culpability

In Bad Acts and Guilty Minds,36 Leo Katz collects some cases from the colonial period in Africa that, rendered schematically, look like this: The actor kills someone and claims that the victim was an evil spirit or a witch, not a human being. The law proscribed knowingly killing human beings, not evil spirits or witches. But the actor’s mistake is not of the ordinary factual kind. The actor, even if shown the body, the organs, the DNA, and so forth, would probably have said, “Yes, it looks like a human being, but see that mole: that mole proves that this is really a witch. Witches look like human beings in all respects, right down to their DNA, but they are not.”

Assuming these actors were otherwise sane, what should we say regarding whether they acted culpably? Their mistakes were, unlike the usual mistakes that negate mens rea in criminal law, not factual

36 Leo Katz, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (1987).