64	T HE CULPA BLE CHOICE

But what if the actor’s unreasonable belief in R or F were “reckless?”65 That is, what if the actor has a reckless belief about his act’s riskiness, or a reckless belief in facts that, were they present, would justify the risks he believes his act imposes? But note the oddity of the notion of a reckless belief, as opposed to a reckless act based on a belief. It seems to us that the notion of a reckless belief is incoherent. With respect to R, the actor’s belief regarding R’s magnitude necessarily includes his belief about the magnitude of 1 − R. And with respect to F, the notion of a reckless belief posits a belief that F is true, coupled with a belief that it is so likely F is untrue that it is unjustifiable to believe F is true. In believing F with probability P, the actor has already taken account of the likelihood (1 − P) that F does not exist. If the actor’s believing F at probability P does justify his imposing risk R, then his believing not-F with likelihood 1 − P cannot render his act unjustified – for it is only the logical corollary of his justifying belief.

Because we need not focus on negligence (because it is nonculpable), and because “reckless beliefs” are an incoherent concept, all we need to determine insofar as recklessness is concerned is what did the actor sincerely believe about the risks he was imposing and about the facts supporting justifying reasons for imposing those risks. We need not determine whether his factual beliefs were “reasonable.” We need address only the actor’s actions as he perceived them.

E. RECKLESSNESS AND ACT AGGREGATION

A final clarification about how the actor’s actions are assessed: the recklessness analysis applies to discrete acts and not to aggregations of acts. Suppose the actor performs A believing it poses a 0.01 risk of death or serious injury. And suppose his reasons justify that level of risk. But suppose, as well, that the actor intends to repeat A day after day, with the same risks and reasons each time – for example, he’s building a tunnel, and A is careful dynamiting. With enough repetitions, the risk of death or injury over time will rise to a high level. Nonetheless, the recklessness analysis should be focused on each discrete risky act. (We take up how to individuate acts in Chapter 7.)

65 T his formulation is suggested by the Model Penal Code § 3.09(2) (1985).

T HE ESSENCE OF CULPA BILI T Y

65

There are some further implications that we should mention. First, our folding knowledge (and purpose) into recklessness means that we do not have to concern ourselves with whether those like the tunnel builder who repeatedly engage in acts, each of which carries a low probability of harm, but which with enough repetitions raise the probability that one of them will cause to harm to almost a certainty, “knowingly” cause the harm if and when it occurs. They may believe to a practical certainty that if they repeat these acts a sufficient number of times, they will eventually cause harm. However, whether they do so “knowingly” is beside the point. All that matters is what risk the actor believes is entailed by each particular act, and whether that risk is justified by reasons the actor is cognizant of when acting (and the probability the actor assigns to their existence). If the risks of tunnel building – say, to bystanders who have not consented to their imposition – are justifiable given the benefits of tunnels, then even if the risk is very high that, say, seven people will be killed in the process, tunnel building is not a culpable activity. Nor is any component act thereof culpable if it is not too risky in itself given the costs of less risky alternatives. This is merely the corollary of the point made earlier: Even a very minimally risky act is reckless if undertaken for frivolous or malicious reasons (and no weightier reasons exist of which the actor is aware).

(We leave aside the interesting moral question of whether it matters that most repetitive activities that are risky to bystanders, such as tunnel building, automobile and air travel, blasting, and so on, impose their risks on “statistical” rather than on identifiable persons. Suppose, for example, that the risks of tunnel building were concentrated on one known individual – Sam. Sam lives near the construction site, has a rare medical condition such that repetitive jack-hammering will eventually cause him to die, and cannot be moved. If tunnel building’s benefits justify the loss of several statistical lives, does it likewise justify the killing of Sam?66 It is possible that some acts are justifiable only if, from our ungodlike epistemic vantage point, the risks of an act are borne by many individuals rather than concentrated on one – even if God knows the one on whom the harm will actually fall, and whose risk is therefore one.)

66 See Guido Calabresi and Phillip Bobbitt, Tragic Choices (1978).