Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability
60 Pages Posted: 12 Aug 2010 Last revised: 19 Aug 2010
Date Written: August 18, 2010
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.
Keywords: Probability, Risk, Recklessness, Negligence
JEL Classification: K14
Suggested Citation: Suggested Citation