Abstract

http://ssrn.com/abstract=1657901
 
 

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Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability


Eric Alan Johnson


University of Illinois College of Law

August 18, 2010

Illinois Public Law Research Paper No. 10-01

Abstract:     
In criminal cases, courts routinely say that the lawfulness of an actor’s conduct depends in part on the objective probability of harm posed by the conduct. The conventional wisdom among criminal law theorists, meanwhile, is that objective probabilities of the required sort do not even exist, much less determine the lawfulness of conduct. This Article sides with the courts. Drawing on a forgotten but central feature of the Model Penal Code, and on a parallel feature of the law of search and seizure, the Article argues that the answer to the riddle of objective probability lies in the difference between what the actor knows and what the actor merely believes. It argues that probabilities calculated on the basis of what the actor knows – on the basis of “the circumstances known to him,” in the Model Penal Code’s formulation – are not illusory, and moreover are objective in exactly the way that the criminal law appears to require. It argues, further, that the circumstances known to the actor encompass or imply everything essential to actor’s perspective, and so provide a fair basis for determining the justifiability and lawfulness – if not the culpability – of the actor’s conduct.

Number of Pages in PDF File: 60

Keywords: Probability, Risk, Recklessness, Negligence

JEL Classification: K14

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Date posted: August 12, 2010 ; Last revised: August 19, 2010

Suggested Citation

Johnson, Eric Alan, Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability (August 18, 2010). Illinois Public Law Research Paper No. 10-01. Available at SSRN: http://ssrn.com/abstract=1657901 or http://dx.doi.org/10.2139/ssrn.1657901

Contact Information

Eric Alan Johnson (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
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