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it. If those individuals, acting as “persons of reasonable firmness,” would preemptively restrain the sane, but dangerous, rather than wait for the latter to choose to commit crimes, then it is possible that collectively they may excusably impose preventive restraints. Of course, because excuses serve as ex post evaluations of an actor’s action, and not as ex ante rules of conduct prescribing what an actor may permissibly do, excusing such preemptive actions does not constitute an endorsement of such actions. In any event, it is worth exploring whether looking at preemptive restraints through the prism of excuse is more enlightening than working out the contours of when preemptive action is justified.74

B. EXCULPATORY MISTAKES

Do the actor’s mistaken beliefs defeat her culpability and, if so, how? Let us first take up the actor’s mistaken beliefs about the risk she is imposing.

As we have pointed out, risk is itself an epistemic notion. The “true” risks to others’ interests that the actor’s acts unleash are either one or zero – the interest is either set back or not. Therefore, if the actor estimated those risks at greater than zero but less than one, she will always be mistaken. Because culpability depends upon her estimate of the risks and the reasons she has for imposing them, such mistakes cannot defeat her culpability. If, given her estimate of the risks and her reasons for acting in the face of those risks, she should not have so acted, she is culpable whether or not the risk turns out to be zero, and thus lower than she estimated, or one, and thus higher. Similarly, if she acted appropriately in the face of the risks she estimated, the fact that the risks

74For an excellent discussion of preventive detention of the dangerous but nonculpable, including whether compensation would make such detention permissible, see Richard L. Lippke, “No Easy Way Out: Dangerous Offenders and Preventive Detention,” 27 Law & Phil. 383, 406–414 (2008). Another matter for speculation along these lines concerns social schemes that appropriate others in order to avoid great losses. Such schemes include conscription for the military. But they might also include mandatory organ pooling. Because they are appropriative, they cannot be justified, at least for libertarian liberals. But, as with duress, which often involves appropriation, such schemes might be deemed “excused.” Likewise, as we said previously, the surgeon who cuts up a healthy patient for organs to save five dying ones might be “excused” for such an appropriative act if the five patients were, say, his children.

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turned out to be one, and others’ interests were set back, should not matter any more than had they turned out to be zero. (The same holds for her erroneous but sincere beliefs about the likelihood that justifying reasons exist. If those beliefs would justify her choice were they correct, then they render the choice nonculpable no matter how fanatical those beliefs appear.)

Moreover, because we deny that negligence – inadvertence to risks that the so-called reasonable person would have adverted to – is culpable, all that matters to the actor’s culpability is what risks to others’ interests the actor believes she is imposing and why she is imposing those risks. It does not matter that the actor underestimates the risks due to ignorance about brute facts (e.g., this material is combustible) or about the legal characterization of such facts (e.g., because of the rules of property law, this paneling that the actor is destroying belongs to the landlord and not to the actor).75

The same analysis applies to the actor’s beliefs regarding the facts that ground her reasons for imposing the risks. If she is driving fast and thereby imposing high risks on others because she believes her passenger is seriously ill and needs urgent medical attention, or if she is diverting a river and flooding someone’s farm because she believes doing so is necessary to avert catastrophic flooding of a downstream town, the fact that she is mistaken about the illness of her passenger or the necessity of the diversion of the river is immaterial to her culpability. If the risk that she perceived to her passenger or to the town justified the risk she believed she was imposing by acting as she did, then she is no more culpable for being mistaken about the former risk than she is for being mistaken about the latter. Again, negligence is not culpable.

Suppose, however, that the actor is mistaken about whether the risks she perceives herself to be imposing on others’ interests are justified by her reasons for doing so. Suppose she drives ninety miles per hour in traffic, aware that she is imposing a high risk to others of death, injury, and property loss, in order to get home in time to see the beginning of her favorite TV soap opera. And suppose she sincerely believes she is justified in doing so, although she is not. Does this latter mistake negate her culpability?

75 Regina v. Smith (David), (1974) 2 Q.B. 354.

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In general, the answer is no. A choice that reflects insufficient concern for others’ interests is the paradigmatic culpable choice. The fact that the actor believes her lack of concern is justifiable cannot make it so. Callousness, cruelty, self-centeredness, avarice, and other vices that are revealed in unjustif ied risk impositions explain culpability rather than negate it.76

This point underpins the criminal law’s reluctance to excuse ignorance of the criminal law. At least with respect to crimes that are mala in se, ignorance that the conduct they proscribe is legally prohibited does not undermine the culpability and negative desert of those who commit such crimes.

One can imagine the existence of someone from a culture so alien that ignorance regarding what reasons justify imposing what risks

76Of course, our perceptions of the strength of reasons, just like our beliefs about matters of fact, including facts that bear on risks, come on us “unbidden.” If the actor perceives her reason for speeding – catching her favorite soap opera – to outweigh the interests of others she is putting at risk, she can claim that that is just how she saw things at the time she acted. If a claim of that succeeds with respect to her beliefs regarding the risks she is creating, why does it not succeed with respect to her beliefs about the strength of justifying reasons?

Pamela Hieronymi accepts that our beliefs, including our evaluative ones, are nonvoluntary, but she argues that we are responsible for them nonetheless. They constitute one’s moral personality and are the proper targets of our reactive attitudes. Pamela Hieronymi, “Responsibility for Believing,” 161 Synthese 357 (2008).

On the other hand, Gideon Rosen derives from the nonvoluntary character of beliefs a powerful skeptical argument. Gideon Rosen, “Skepticism about Moral Responsibility,” in Philosophical Perspectives 18, Ethics (2004), 295–313. He begins by accepting the position we put forward in Chapter 3, namely, that ignorance of the risks one’s act imposes is not culpable (although it may be evidence of some earlier culpable act, one in which the actor takes a risk of his future ignorance for no sufficient reason). Id. at 300–304. Rosen then argues that normative ignorance – ignorance regarding whether the reasons one has for imposing the risk one perceives are sufficiently weighty to justify so doing – can also be (and usually is) nonculpable for the same reason ignorance of the risk is nonculpable, namely, its being acquired nonculpably. Rosen concludes that all truly culpable acts will be akratic, that is, undertaken despite the actor’s knowing they are unjustified – a position that, of course, has its roots in the Platonic notion that all evil reflects ignorance. Id. at 304–308.

The questions of responsibility and culpability for normative beliefs is a deep one, and one with obvious ties to the freewill–determinism–moral responsibility debates. A satisfactory answer will depend ultimately on a satisfactory resolution of that debate. Here we can do no more than merely assert our belief, one that most of our practices of blaming and punishing presuppose, that one is morally culpable for “mistakes” of justificatory strength but not for mistaken beliefs about factual matters, including facts that bear on legal characterizations. (Or perhaps akratic choices, choices that the actor realizes are against the balance of reasons, are much more common than Rosen believes.)

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might negate culpability. (Consider “It is a matter of honor to stone to death an unchaste daughter.”) Sometimes mistakes regarding justifications reveal culpability-negating insanity rather than culpability. And psychopathy reflects a certain type of ignorance regarding justification – emotional rather than cognitive – although whether psychopathy negates culpability is, of course, controversial.77

But what if the actor imposes risks of engaging in conduct that is treated as a “proxy crime” but is unaware that such conduct is so treated? If she believes – correctly – that her conduct imposes risks of harm that are justified by her reasons for acting, but is unaware that she is risking engaging in legally proscribed proxy conduct to such a degree that her risking that is not justified by her reasons, is she culpable? Suppose, for example, that possessing a machine gun is legally proscribed because of the frequency with which such possession leads to undue risks of death or injury. And suppose the actor is (1) aware that she possesses a machine gun, (2) unaware that such possession is proscribed, (3) and correctly believes her possession of a machine gun is not unduly risky to others.78 (She is well trained in machine gun use, keeps the machine gun in a highly secure place, and has very good reasons for possessing it.) Is the actor culpable for unduly risking possessing a machine gun – in this case, by actually possessing one – despite her ignorance of the law’s absolute proscription of such possession?

Given our analysis of culpability and its bases, we must conclude that the actor is not culpable for possessing the machine gun. She is not culpable for the risks to others she perceives. For she estimates them to be so minimal that her reasons for possession really do justify her imposing them. Despite the fact that she is risking the proxy conduct of possessing a machine gun at a quite unjustifiable level – she believes the risk is virtually 100 percent, given that she believes to a virtual certainty that she does in fact possess a machine gun – she is unaware that possessing a machine gun is forbidden.

Ignorance of crimes of proxy conduct is therefore a defeater of culpability for risking such conduct. Such crimes may be quite appropriate components of regulatory schemes. Nonetheless, one who is not

77See the discussion of psychopathy infra.

78See R. A. Duff, “Criminalizing Endangerment,” 65 La. L. Rev. 941, 959–961 (2005).