7 Culpability beyond Awareness of Risk Some Existing Accounts The previous chapter gave the positive case for the importance of the concept of awareness of risk to the 'Standard Account' of culpable carelessness in Anglo-American criminal law. Awareness brings in con- sideration of belief, which in turn brings in considerations of choice. Choices typically link defendants particularly clearly to their unjustified risk-taking, thus making plain the matter of culpability - the linkage of a defendant to her wrongdoing in an adequately personalised manner. It was nevertheless contended that this positive case for viewing awareness as important to culpability was not sufficient to ground (some version of) the Exclusive Thesis, i.e. the argument that awareness of risk is a necessary (if not sufficient) condition of criminal culpability. An alternative, negative argumentational strategy, adopted by some Exclu- sive Theorists, is to contend that non-awareness-based conceptions of culpability are flawed. Typically, the boon of the choice theorist is character theories, but other theories have also been objected to. This is a less effective manner of defending the Exclusive Thesis, because it demands that all conceivable alternative accounts be dismissed, and no existing critique is adequately comprehensive. That is not to say, however, that demonstrating the flaws in existing accounts of culpability without awareness is a worthless endeavour. Seeing the pitfalls and useful starting points in existing accounts of culpable carelessness that are not premised exclusively on awareness of 1 See, however, the discussion of unreflective choices above at Chapter 6, section on 'The Significance of Choice'. 2 See Michael S. Moore, Placing Blame: A Theory of the Criminal Law (Oxford: Oxford University Press, 1998), ch. 13. Moore also objects to capacity-based theories, such as Hart's (discussed below). 3 See, e.g. Larry Alexander and Kimberly K. Ferzan with Stephen J. Morse, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009), chs. 2-3. 4 Cf. the rather cursory treatment of some arguments in ibid., ch. 3. 178 Downloaded from https://www.cambridge.org/core. University of Cambridge, on 04 Jun 2020 at 06:54:19, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781139855945.007
CONDUCT: HART'S INSIGHT 179 risk allows for the development of a better alternative. This chapter is thus dedicated to clearing some ground in the existing literature on accounts of culpability for unjustified risk-taking that do not require the defendant to have been aware of the relevant risk at the time of taking it. Some previous treatments of culpability beyond awareness are more similar to the account presented in the next chapter, and will be dealt with there. This chapter begins by exploring accounts of culpability without awareness that are based (to a large extent) on the defendant's conduct. Accounts of culpability without awareness that rely on 'tracing' - i.e. looking for culpability in previous decisions made by the defendant before she was unaware of the risks attendant upon her conduct (q-ing) - are then analysed. Next, the chapter discusses theories of culpability premised on counterfactual assessments of what the defend-