YAFFE ON CRIMINAL ATTEMPTS

Abstract

Central to Gideon Yaffe's powerful theory of the legitimate criminalization of unsuccessful attempts is his “transfer principle,” according to which, “if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I argue that this principle, taken together with Yaffe's theory of the nature of attempts, threatens to lead to a normatively problematic conclusion in support of the legitimate criminalization of attempts that are merely a matter of thinking and do not involve action in the public space. And I argue that Yaffe's efforts to block this conclusion are themselves problematic. This leads to a proposed revision of the “transfer principle,” one that draws on plausible normative views about the nonlegitimacy of criminal sanctions in cases of attempts that are merely a matter of thinking and do not involve action in the public space.