criminal-law
Culpablility for taking an unjustified risk with the interests of others v. Criminalisation
<p>How can a monograph focus when <strong>[3]</strong> &quot;a defendant is culpable for taking an unjustified risk with the interests of others&quot;, but not <strong>[1]</strong> &quot;whether risking the interests of others itself should be criminalised or <strong>[2]</strong> &quot;justifying risk-taking&quot;? In other words, can you kindly distinguish more clearly 1, 2, 3? They look intertwined to me. I never studied philosophy, please explain like I'm 5.</p>
<p>If you're adjudicating 3 (when a defendant is culpable for taking an unjustified risk with others' interests), then aren't you</p>
<ul>
<li><p>&quot;justifying risk-taking&quot; in some circumstances&quot; [1]</p>
</li>
<li><p>and adjudicating WHEN 2 happens (when risking others' interests should be criminalized)?</p>
</li>
</ul>
<p>&quot;taking an unjustified risk with others' interests&quot; means same as &quot;risking others' interests&quot;. To adjudicate when these [1] [2] happen, you have to &quot;justify risk-taking&quot; in some circumstances.</p>
<p>Findlay Stark. <a href="https://www.cambridge.org/core/books/culpable-carelessness/4B489D7BFB8141FFDD66F887C623E0AD" rel="nofollow noreferrer"><em>Culpable Carelessness</em></a> (2017).</p>
<p>p 2</p>
<blockquote>
<p>       It is because of its concern with all things considered wrongdoing that
Anglo-American criminal law concentrates on the idea of <em>unjustified</em>
risk-taking.11 Importantly, the focus of this book is not on the question
of <strong>[Boldening 1] whether risking the interests of others <em>itself</em> should be criminalised</strong>
even where the risked consequence or circumstance does not materialise
(in other words, whether simple <em>endangerment</em> should be criminalised)12
or about <strong>[Boldening 2] the idea of justifying risk-taking</strong>. Separate books could be</p>
</blockquote>
<p>p 3</p>
<blockquote>
<p>written about these topics. More will have to be said about them in this
book, but the main focus is on the circumstances in which a <strong>[Boldening 3] defendant is
<em>culpable</em> for taking an unjustified risk with the interests of others</strong>.<br />
       The term ‘culpability’ is used loosely in criminal law theory.13 There
nevertheless appears to be an acceptance, in much of the theoretical
literature on criminal law, that culpability is demonstrated through the
defendant’s <em>insufficient concern</em> for the interests of others. The idea of
insufficient concern for the interests of others links those who hold
vastly different perspectives on other issues. For instance, Alexander,
Ferzan and Morse and Tadros adopt different approaches to the wider
matter of criminal responsibility: Alexander, Ferzan and Morse think
choice is the sole basis of responsibility;14 Tadros explains responsibility
in terms of character.15 They also adopt different accounts of
the justification of punishment: Alexander, Ferzan and Morse are
retributivists;16 Tadros supports (in <em>Criminal Responsibilit</em>y, where he
develops his thoughts on insufficient concern) a communication view
of punishment.17 They agree, however, that the element of culpability
required for a criminal conviction is a demonstration (through choices
or ‘in-character’ behaviour) of <em>insufficient concern for the interests of
others</em>.18 Furthermore, focussing on the defendant’s lack of sufficient
concern for others is one way of understanding accounts of culpable
carelessness in terms of ‘indifference’ towards risk.19 The basic understanding
of culpability as insufficient concern for the interests of others
will thus be adopted in this book. It is <em>the way</em> in which this lack of
concern is demonstrated that is more controversial, and which requires
much more explanation.</p>
</blockquote>
<p>p 258</p>
<blockquote>
<p>      This is not a cause for concern, however. The ‘objective’ aspects of
negligence as failure of belief are not unduly troubling. Absent a strong
attachment to ‘subjectivity’ – which would require independent justification
of the sort that the Exclusive Thesis needs170 – the presence of some
‘objectivity’ is not fatal to a defensible theory of culpable carelessness.
‘Objectivity’ comes in degrees, and the argument here is that negligence
as failure of belief is ‘subjective’ <em>enough</em> to suffice for criminal conviction, in
a way that a conduct-based view of negligence is not. Where there is
disagreement over the proper social expectations concerning risk-taking
and belief formation, importantmoral and political questions are, of course,
raised.171 But it is not the aim of this book to remove them from the
attribution of criminal responsibility and liability. If anything, ‘objective’</p>
</blockquote>
<p>p 259</p>
<blockquote>
<p>considerations are simply made more transparent by the theory of negligence
as failure of belief. This might be a good reason to limit the use of
negligence as failure of belief, but <strong>that is a point not about <em>culpability</em> but
about <em>criminalisation</em>.</strong> This point will be returned to later in this chapter.</p>
</blockquote>

<blockquote>
<p>can you kindly distinguish more clearly 1, 2, 3?</p>
</blockquote>
<p>Statement 3 is premised on the assumption that &quot;<em>taking an unjustified risk with the interests of others</em>&quot; in and of itself is unlawful. The author clarifies that he will not delve in the meaning of &quot;<em>justified risk-taking</em>&quot;, nor will he address the pertinence of criminalizing the <em>risking of the interests of others</em>.</p>
<p>The author clarifies that he takes these concepts/assumptions for granted, and will only discuss the issue of defendant's culpability (i.e., statement 3). For instance, in subsequent pages the author might be citing cases where the defendant posited that his risk-taking was justified and/or why criminality cannot be ascribed to the risk(s) he took in the events leading to that prosecution.</p>
