An Objectivist’s Account of Criminal Attempts
| Published date | 01 May 1998 |
| Date | 01 May 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00155 |
| Author | K. J. M. Smith |
REVIEW ARTICLE
An Objectivist’s Account of Criminal Attempts
K.J.M. Smith*
R.A. Duff,Criminal Attempts, Oxford: Clarendon Press, xxvii + 411 pp, hb £45.00.
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
1
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,
The Modern Law Review Limited 1998 (MLR 61:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
438
* Cardiff Law School.
1Scofield (1784 ) Cald 397.
2Higgins (1801) 2 East 5, 102 ER 269.
3 In many ways, Criminal Attempts constitutes a greatly expanded analysis of the chapter on attempts in
Duff’s Intention, Agency and Criminal Liability (Oxford: Blackwell, 1990). The central concern of
this earlier work was the philosophy of action in relation to problems of mens rea.
To continue reading
Request your trial