Thursday, October 4, 2012
Mitchell N. Berman (University of Texas School of Law) has posted Attempts, in Language and in Law on SSRN. Here is the abstract:
On what grounds does the law punish attempted offenses? The dominant answer is that the law punishes attempts to commit an offense precisely because they are attempts (extra-legally), and it is true as a general moral principle that if one should not X, one should not attempt to X. If this is right, then the proper contours of the law of attempts should track the contours of what are attempts (extra-legally). At least to a first approximation, that is, law should track metaphysics. Call this the “Attempt Theory” of attempt liability. Gideon Yaffe’s recent book, "Attempts," is a rigorous and philosophically sophisticated critical analysis of attempt law predicated on just this foundational assumption — the assumption, to repeat, that attempts to commit an offense should be criminalized because they are attempts as a pre-legal or extra-legal matter.
However, there is another possible answer to the question. Possibly, those things that are in fact attempts are properly criminalized not because they are attempts, but because the best reasons for criminalizing the complete or “perfect” offense are also good reasons to criminalize this conduct, and there are no compelling reasons, of policy or justice, not to. We can call this the “Underlying Reasons Theory” of attempt liability. The Underlying Reasons Theory does recognize that there are things in the world that are attempts and that one who attempts to do what the criminal law forbids should be punished. It just maintains that the fact that an actor attempted to commit an offense is not, strictly speaking, what justifies our punishing her.
This short review of Yaffe’s book explicates the difference between the Attempt Theory and the Underlying Reasons Theory as approaches to criminal liability for what we presently call “attempts.” In a nutshell: paradigmatic attempts would be criminalized on both accounts, but the Underlying Reasons Theory is likely to endorse criminalization of some conduct that the Attempts Theory would not. This paper advocates the Underlying Reasons Theory and argues that we can and should assess the proper scope of “attempt law” without working through the metaphysics of attempts.