An Objectivist’s Account of Criminal Attempts

Abstract

A law student's initial encounter with inchoate liability and, most particularly, the general offence of criminal attempt usually provokes little more than a nod of recognition of what appears to be a self-evident and necessary part of a systematic, comprehensive structure of criminal responsibility. Of course, this has not always been so. Despite Lord Mansfield's authoritative statement of principle in the late eighteenth century case of Scofield' and dicta from the early nineteenth century case of Higgins,2 a general attempt offence was slow in establishing itself as a form of criminal liability. The gradual development of general attempt liability over the subsequent two centuries or so is a revealing tale of judicial hesitancy, conceptual neglect and timidity. This is hardly unique to attempt, in many ways typifying the judicial path followed in respect of most general concepts of criminal responsibility. However, such relative judicial neglect is, perhaps, rather more understandable when due allowance is made for the full array of far-reaching conceptual issues bound up with the seemingly simple notion of criminal attempt. Anyone still entertaining lingering doubts as to the truth of this will be rapidly and emphatically re-educated by Antony Duff's penetrating, atomistic analysis in Criminal Attempts. Whilst criminal attempt is the core of Duff's book, the work draws in a broader, more far-reaching critical analysis of the general basis for the ascription of criminal responsibility. Indeed, in some respects Criminal Attempts is two books: one a comprehensive exposition of attempt, the other a lengthy critique of some fundamental concepts underpinning criminal liability, especially the philosophy of action and the opposing attractions of subjectivism and objectivism. Along the way, Duff also undertakes extensive excursions into the territories of the philosophy of punishment and moral philosophy.3 In short, Duff is not prepared to examine and refashion the superstructure of criminal attempt without ensuring that its elemental foundations are of his own specification and construction. In terms of analytical rigour and scholarship it is an approach not open to criticism. However, for present purposes, whilst not ignoring Duff's wider foundational conceptual claims, the review's central concern, so far as possible, will be an examination of his legal and philosophical analysis of criminal attempt. Criminal Attempts comprises three designated parts. Part I offers a critical evaluation of the case law and, occasionally, contemporary commentaries. Here,