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actor perceives as a risk of harmful conduct at T2, then the actor acted recklessly at T1 and should be punished for his act at T1 irrespective of what occurs thereafter.62

C. REASONS AND JUSTIFICATION

Although we defend our view of justification in Chapter 4, at this point it is necessary to discuss how justification figures in the recklessness calculus. First, we should note that frequently – usually? – the actor’s beliefs about justifying facts are, like his beliefs about risks, probabilistic. Thus, Driver might believe not that his passenger will certainly die unless rushed to the hospital but only that there is a probability P that he might die. If P is low enough, or R is high enough with respect to others’ injury or death, then Driver’s rushing the passenger to the hospital might indeed be reckless.

However, unlike risk, justification is objective. In general, the actor’s mistaken belief that his reason X justifies his act’s risk R is immaterial to his culpability. That is, once we know that David is rushing home to get to the Knicks game, and he believes his speeding is increasing the risk of harm to persons, property, and the like, then the balance of perceived risks versus reasons for imposing risks is itself a question of law. David is reckless even if he sincerely believes that watching the Knicks game is more important than human lives. On the other hand, if Darren is speeding to get a passenger to the hospital but is mistaken about how sick his passenger is – and Darren’s reason (sick passenger), if Darren’s beliefs were correct (the passenger is ill), would justify the risk – then Darren is not reckless. But if his mistake is not about the facts giving rise to the reason but about the weight of the reason and whether

62Many cases of inadvertent negligence – which, as we argue in Chapter 3, is itself nonculpable – may be the result of earlier reckless and therefore culpable acts. The parents of William Tabafunda might have decided to skip out on the parenting class on “How to Spot Dangerous Medical Conditions in Your Children,” realizing that by doing so they were creating some (probably small) risk to William, but wanting to watch Fear Factor on television. Cf. State v. Williams, 484 P.2d 1167 (Wash. Ct. App. 1971). If so, they may have been reckless, albeit only slightly so. But that act, not their subsequent failure to recognize William’s life-threatening condition, should have been the focus of their prosecution. See Larry Alexander, “Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law,” 7 Soc. Phil. & Pol’y 84 (1990).

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it justifies the risk, such a mistake is in most instances immaterial to his culpability.

At the theoretical level, our approach eliminates the problem of inculpatory legal mistakes. As an illustration, consider an actor who believes that reason X does not justify the risk R he is imposing when in fact it does. Thus, consider Doug, who believes that it is legally impermissible to drive eighty-five miles per hour to get his sick passenger to the hospital but does so anyway. In fact, his reasons for action do justify his speed. If Doug’s legal analysis about what reasons justify what risks cannot exculpate him, can it inculpate him?

We think not. In Doug’s case, he has essentially done two calculations. First, he has judged that, from his perspective, it is so important to get his passenger to the hospital that it is worth the risks to others. If he did not think so, he would not speed to the hospital. After all, he has already assessed that his friend is sick, and that this is a sufficient reason to drive fast. Second, Doug believes that the law forbids this speeding. Yet, despite Doug’s belief that his act is legally unjustified, he has not shown insufficient concern for others. Rather, his concern for others actually mirrors the calculation the law makes.63

In looking at whether the actor’s reasons justify the risk he believes himself to be taking, we must also ask which reasons count. Must the reasons that either justify or fail to justify the actor’s imposition of risks be the reasons that actually motivate the actor, or can they be merely reasons of which the actor is aware but that do not actually motivate him? (Given that risks are either one or zero, the actor obviously has to be at least aware of justifying reasons; otherwise, any putatively reckless act that failed to cause harm would be nonreckless because there were reasons of which the actor was unaware that did in fact justify the act, given that it was harmless.) But is it sufficient that the actor is aware of reasons that would justify his risk imposition even if he is motivated by reasons that do not justify the risk imposition?

For example, suppose the driver with the passenger who needs urgent medical care would not race him to hospital were that not a risky

63We take up some complications when we consider proxy crimes, crimes that are defined to capture stock examples of insufficient concern but that include some case of sufficient concern within their scope. If an actor shows sufficient concern but believes he is violating a proxy crime when he is not, has he acted culpably?

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thing to do. (He is motivated by the thrill of imposing risks on others and unmotivated by saving his passenger’s life.) But he also knows that saving his passenger’s life is a reason that is sufficiently important to justify his risk imposition. In our view, if he then races at high speed to the hospital, he should not be deemed reckless. (One might imagine an ambulance driver who simply loves the thrill of running red lights, or an executioner who enjoys killing people.) The law seeks to guide an individual to act or to forbear. We do not care why an actor avoids committing a crime so long as he does. That is, the actor may not be motivated by the law’s prohibition but may still have other reasons not to commit a crime. For example, an actor may decide not to take possession of something she believes to be stolen property, not because the law forbids such an action (a prohibition of which she is aware), but because she does not care for the property. So long as the actor’s practical reasoning is informed by justifying reasons, it should not matter that the actor is not motivated by those reasons.

Now it is certainly the case that our nonreceiver of stolen property (or our thrill-seeking rescuer or misanthropic executioner) is not an admirable person. He does not act for the reasons for which we would like him to act. Nevertheless, although he has insufficient concern for the interests of others, his actions do not display insufficient concern. He is perhaps a bad person but not a bad actor.64

It is worth explicating the implications of our position for the permissibility of actions by third parties. If a third party is aware of the justifying reasons, he may permissibly aid an actor who is undertaking an act the actor believes to be risky irrespective of the actor’s awareness of the justifying reasons or the actor’s culpability. That is, a third party may permissibly lend his car to the thrill-seeking rescuer to drive

64T his distinction between bad actor and bad person may explain some of the experimental findings identified by Knobe and Doris. See Joshua Knobe and John M. Doris, “Strawsonian Variations: Folk Morality and the Search for a Unified Theory,” in The

Oxford Handbook of Moral Psychology (J. M. Doris et al., eds., forthcoming).

In Chapter 4 we make a concession, prompted by Mitch Berman, that in some situations, it is possible that an actor who is aware of reasons that would justify his risk imposition is still not justified in imposing the risk if those reasons are not his reasons for acting – that is, they do not motivate his action. Even then the actor himself may have difficulty determining whether he would have acted in the absence of either the justifying reasons or the motivating ones.

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the passenger to the hospital so long as the third party believes that the passenger is ill and speeding is therefore necessary. Even if the actor himself is not motivated by these reasons – and even if he does not know these reasons exist and is himself acting culpably in speeding – the third-party car owner’s act of lending the car is still justified. The actor may be acting recklessly (as he would be were he unaware of the passenger’s illness), but the third party is not. Indeed, in some cases, a third party may encourage the actor’s culpable act, which is reckless from the actor’s perspective but quite salutary from the third party’s.

If someone perceives reasons that justify a risky act, he may undertake that act or encourage another to undertake it, even if the one encouraged would be culpable (because he is unaware of the justifying reasons), and even if the one who perceives the justifying reasons is not motivated by them. If Strategic Bomber would be justified in bombing the munitions factory despite the civilians he will kill, Terror Bomber will be justified in bombing it and will be nonculpable if he is aware of, though not motivated by, the supporting strategic reasons. Moreover, even if Terror Bomber is unaware of the justification and thus culpable in bombing, if Strategic Bomber would be justified in bombing, one who is aware of the justifying reasons may encourage Terror Bomber to bomb.

Again, as we earlier noted, but it is important to bear in mind, the actor’s beliefs about justifying facts, like his beliefs about risks, are probabilistic. The driver may believe not that it is certain his passenger will die unless rushed to the hospital but only that there is a certain probability P that he might die. Whether the actor is reckless will then turn on the relative magnitude of P with respect to outcomes for the passenger and R with respect to outcomes for those at risk from the actor’s driving. The higher the probability of a really bad outcome for the passenger and the lower the risk of bad outcomes for those at risk from the actor’s driving, the more we are compelled to the conclusion that the actor is not culpable or is culpable only to a slight degree. Conversely, the lower the probability of bad outcomes for the passenger and the higher the risk of bad outcomes for those at risk from the actor’s driving, the more we are compelled to the opposite conclusion. The same holds for third-party interveners: their culpability for aiding (or resisting) the actor’s act turns not on the actor’s culpability but on their estimate of the probability of justifying facts – good outcomes – and the risks of bad outcomes. What

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is crucial to keep in mind is first, that justifying reasons are, like risks of bad outcomes, probabilistic and must be discounted by the probabilities the actor assigns to them and, second, that it is each actor’s subjective beliefs about the probabilities of outcomes, good and bad, that determines his culpability.

D. SINCERE, UNREASONABLE, AND RECKLESS BELIEFS

AND THE CULPABILITY DETERMINATION

In Chapters 5, 6, and 7, we discuss what sort of act suffices for a culpable act. (We argue there that the actor must believe he has unleashed an unjustifiable risk, even if he has not, but that any act that the actor believes unleashes such a risk suffices for culpability.) Here, we want to address further how the actor’s beliefs affect the culpability of his actions. First, we believe the focus of the culpability judgment is the actor’s actual beliefs about the effects of his acts – and not the reasonableness or unreasonableness of those beliefs. That is, suppose the actor believes that fact F exists, and that F supports reason X, which in turn justifies risk R. And suppose that F does indeed support X, which does indeed justify R. But suppose the actor is mistaken about F’s existence. As we have argued at length, if, taking the facts as the actor believes them to be, his action is justified, then his action is not culpable. This means that the question of whether the actor’s beliefs were reasonable simply drops out of the calculation. In other words, even if the actor’s assessment of the situation is unreasonable (from some external point of view), this alone is not sufficient to render the actor culpable. Our analysis is based on two claims: first, that negligence is not itself culpable; and, second, that there is no such thing as a reckless belief.

In Chapter 3 we are going to argue that negligence – “unreasonable” underestimation of risk or overestimation of the benefits the risky action will produce – is not culpable. That means the actor’s mistake about R – given that true risks are either one or zero, all beliefs about R, where R is greater than zero but less than one, are mistaken – is never itself culpable just for being “unreasonable.” The same should be true of the actor’s “unreasonable” mistake about F, the facts that would, if present, give rise to the justifying reasons. Negligence regarding the justifying facts should not be deemed culpable.