David Prendergast (School of Law, Trinity College Dublin) has published "Recklessness Without the Risk" on SSRN. Here is the abstract:
Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that recklessness can be found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear to be of use for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness.This is a post-peer-review, pre-copyedit version of an article published in Criminal Law and Philosophy. The final authenticated version is available online at: https://doi.org/10.1007/s11572-019-09510-y. Its citation is David Prendergast, ‘Recklessness Without the Risk’ (2020) 14 Criminal Law and Philosophy 31.
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