Abstract
In this short article I examine whether and how one’s minor culpability in giving rise to an instance of otherwise justified defense affects the defense and affects the act giving rise to it.
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Notes
The notion of culpability that I am employing here has it that an actor’s culpability is based on her subjective estimate of the probability (1) that her act will result in a setback of an other’s morally or legally protected interests, and (2) that other facts exist that could justify or aggravate that setback. If, for example, she believes it is highly likely that her act will seriously injure or kill someone and highly unlikely that injuring or killing that person will turn out to be justifiable –- for example, that person is unlikely to be about to launch a terrorist attack –- then she is culpable for so acting. Notice that culpability thus conceived does not depend on how things actually turn out. Even if the act does not injure or kill anyone, or even if the person is killed or injured but also turns out to have been a terrorist about to launch an attack, if the actor at the time she acted estimated the probability of killing or injuring to be sufficiently high and the probability that the victim was a terrorist to be sufficiently low, then she was culpable for so acting despite how things turned out.
Wrongfulness, as opposed to culpability, does depend on how things turn out. To the extent that whether a setback to someone’s interests is wrongful turns on whether that setback has effects that ultimately make it justifiable, then we might never know whether the setback was wrongful rather than merely pro tanto wrongful. But because culpability does not depend on how things turn out, but depends solely on the actor’s beliefs at the time she acts about how things are likely to turn out, we can determine culpability regardless of what happens in the future.
These conceptions of culpability and wrongfulness draw on the conceptions employed by Alexander and Ferzan. See, e.g., Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 38–41, 171–96 (Cambridge University Press, 2009); Reflections on Crime and Culpability: Problems and Puzzles 2–3, 4–5, 8–9 (Cambridge University Press, 2018).
Supra note 1, at 39–40.
Eric A. Johnson, Self-Mediated Risk in Criminal Law, 35 Law & Phil. 537 (2016).
For some support for the Alexander-Ferzan position, see George Sher, A Wild West of the Mind, Australian J. Phil., DOI:https://doi.org/10.1080/00048402.2018.14903260. Sher puts the point this way:
Put most simply, the reason why it cannot always be wrong to tolerate situations that raise the likelihood that one will act impermissibly is that such situations are omnipresent. By attending a faculty meeting with my supremely irritating colleague, I raise the likelihood that I will snap and run amok; by driving to campus for the meeting, I raise the likelihood that I will accelerate through a yellow light and cause an accident; by holding the false belief that I am late, I further raise this likelihood. Still, despite these facts, it is not morally wrong for me to hold the false belief, to drive to campus, or to attend the meeting.
Notice that if one were to be culpable for risking one’s own future culpable choice, then that culpability would depend upon one’s estimate of the magnitude of the risk of that future culpable choice. But that estimate would likely change during the time between the decision to take that risk and the time that the risk either will or will not be realized. Al may estimate the risk that he will kill Bill to be at one magnitude when he enters the bar but lower when he realizes Bill is not there or is apologetic for his past misbehavior towards Al. Or Al may estimate that magnitude to be higher than when he entered the bar because he sees a smirk on Bill’s face. At what point in time is Al’s culpability for risking his future culpable choice to be assessed? Alternatively, is his culpability determined by the average of the risks he estimates? Or should Al’s recklessness be additive, as it would be if he were recklessly driving and creating danger every moment he continues doing so? And what if Al, as he is driving, vacillates between going to the bar where Bill hangs out and going to a different bar? Is each decision to go to Bill’s bar a new culpable choice?
The reasons to reject the culpability of estimating the risk of one’s future culpable act are the same reasons why Alexander and Ferzan rejected the culpability of incomplete (non-last-act) attempts. See Alexander and Ferzan, Crime and Culpability, supra note 1, at ch. 6. There they pointed out a number of difficulties that attend deeming the risking of one’s future culpable act to itself be culpable, in particular the difficulties posed by the duration of the risk, by possible vacillation over whether to commit the culpable act, and by varying assessments over time of the risk and possible justifications for the future culpable act.
Shane (Paramount Pictures, 1953).
Kimberly Ferzan thinks Palance does lose his right of self-defense. See Kimberly Kessler Ferzan, Provocateurs, 7 Crim. L. & Phil. 597 (2013). I think that this is mistaken. And see Lisa Hecht, Provocateurs and Their Rights to Self-Defense, 13 Crim. L. & Phil. 165 (2019).
Death Wish (Paramount Pictures, 1974).
Dolores Claiborne (Castle Rock Entertainment, 1995).
One person deemed my view that risks are purely epistemic and not ontological to be “highly contentious.” He correctly characterizes and expresses his skepticism about my position thusly: “If I thought I was taking a risk of harm by shooting a gun in a crowded room, I actually did not take such a risk unless I actually hit someone?” And: “If I risk falling off a high-wire affixed between two buildings, is it really true I took no risk at all unless I fall?” Because I do answer “yes” to those questions, that person says my view “could be construed as a reductio of the position that risk is a purely epistemic concept.”
My view, however, is merely an application of the reference class problem in assessing probabilities. The driver, Al, in my hypothetical in this paragraph estimates the riskiness of his behavior by using a reference class like “driving around blind curves in the wrong lane” and concludes that his act is highly risky – which is all we need to know to assess Al’s culpability for so acting. The person at the apex of the curve bases his estimate of the riskiness of Al’s driving in the wrong lane using the reference class “driving in the oncoming traffic’s lane around a blind curve when there is no oncoming traffic and when a toddler is the other lane.” Using that reference class, he concludes Al’s act is not risky and is actually beneficial. And likewise, in the Russian roulette example, the estimate of risk by one whose reference class does not include knowledge of the location of the bullet will differ from the estimate of one who does know the location. And from the God’s-eye perspective, where the reference class will include everything that will affect the result, “risks” will turn out to be one or zero. See generally Alan Hajek, The Reference Class Problem is Your Problem Too, 156 Synthese 563 (2007).
For problems with assigning culpability to one’s estimate of the probability of acting culpably in the future, see note 4 supra.
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Alexander, L. Culpably Creating the Conditions of Justified Acts: Another Look. Philosophia 49, 107–112 (2021). https://doi.org/10.1007/s11406-020-00211-8
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DOI: https://doi.org/10.1007/s11406-020-00211-8