3 CRITIQUING THE
COGNITIVE THEORY OF CULPABILITY

Thus far, I have shown that the prevailing view of felony murder wrongly equates formal with substantive strict liability. As a result, it fails to acknowledge that felony murder liability can be—and usually is—conditioned on per se negligence rules. Yet even if a critic were to concede both that a felony murder rule conditioned liability on negligence with respect to a danger of death and that negligence is a legitimate form of culpability, she might insist that negligence is not enough culpability to warrant murder liability. My response is that felony murder involves two kinds of culpability: negligently imposing a significant and apparent risk of death, and doing so for a very bad reason.

This response must overcome a fundamental objection. Most criminal law scholars conceive culpability as an actor’s expectation of harm at the time he or she acts. According to this purely cognitive conception of culpability, the actor’s purposes, motives, meanings, and values are irrelevant. In particular, such goals as completing a rape, demeaning a victim because of her race, or intimidating political opponents are irrelevant to culpability for a killing. Why would one adopt such a narrow conception of culpability? Because judging the values that motivate action might seem improper for a liberal state. A purely cognitive view of culpability comports with a restrictive view of the role of criminal law as opposing harmful conduct but taking no sides in disagreements about values.

This ideal of a value-neutral criminal law has at least two distinct sources in liberal political thought. One is rights theory, concerned with protecting liberty. Rights theorists tend to see state coercion as presumptively illegitimate, justified only by a delegation to the state of an individual right of self-defense against private coercion. On such a view, the state is authorized to use coercion to prevent interference with liberty, but not to perfect the characters of individuals, which would violate their liberty. Individuals must be left free to choose their own ends. A second source of the cognitive culpability theory is utilitarianism, which interprets action as the rational pursuit of gratification. From this morally skep

-38-

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