Yaffe on Attempts
University of San Diego School of Law
Legal Theory, 2014, Forthcoming
San Diego Legal Studies Paper No. 13-113
Gideon Yaffe’s Attempts is a masterfully executed philosophical investigation of what it means to attempt something Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on, and be used to criticize, the law’s understanding of those crimes. Indeed, the book is rich in examples drawn from criminal cases and codes.
In this essay, I am going to focus exclusively on the relevance of Yaffe’s philosophical analysis of attempts to the criminal law of attempts. I shall assume that Yaffe’s account of what it is to attempt something is basically correct. What I intend to ask is whether the criminal law uses “attempt” in the way Yaffe uses it, and whether it should use Yaffe’s conception of an attempt. My conclusion is that a lot of criminal law doctrine, and very importantly, the influential Model Penal Code’s treatment of attempts, is inconsistent with Yaffe’s conception of attempts. On the other hand, were the criminal law’s conception of an attempt to conform to Yaffe’s conception, that would represent an improvement. However, that improvement would be inferior to another doctrinal change that would render the notion of an attempt irrelevant to criminal liability.
Two final points. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law’s treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe’s chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission.
Number of Pages in PDF File: 18
Keywords: attempts, legal impossibility, factual impossibility, criminal law
JEL Classification: K10
Date posted: March 27, 2013