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Criminal Attempts and Moral Luck

Published online by Cambridge University Press:  04 July 2014

Nils Jareborg
Nils Jareborg
Affiliation:
Professor of Criminal Law, Uppsala University, Sweden.
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Extract

1. Any doctrine or theory of criminal attempts must address a number of basic questions:

At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed?

What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient?

Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized?

Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt?

I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.

Type
Articles
Information
Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 213 - 226
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 Jareborg, Nils, “Ideology and Crime: Basic Conceptions of Crime and Their Implications”, in Criminal Law Theory in Transition: Finnish and Comparative Perspectives (Helsinki, 1992) 102–112.Google Scholar An expanded Swedish version is published in my Straffrättsideologiska fragment (Uppsala, 1992) 95–120.

2 Pagan Virtue: An Essay in Ethics (Oxford, 1990) 225–226. See also, e.g., 49–60, 73, 144–146, 201, 204–205 and 211.

3 See, in particular, “Criminal Attempts and the Bole of Resulting Harm under the Code, and in the Common Law”, (1988) 19 Rutgers L. J. 725–772, but also e.g., “Belief, Intent and Criminal Liability”, in Oxford Essays in Jurisprudence: Third Series, edited by Eekelaar, John and Bell, John (Oxford, 1987) 1–31.Google Scholar

4 “Criminal Attempts…”, at 736.

5 Ibid., at 770. He continues: “Pressed to its logical conclusion, this approach might have far-reaching implications for the form of the criminal law. The whole classification of offences might be altered, so that there would be no murders, only attempted murders; no rapes, only attempted rapes; no thefts, only attempted thefts; and so on. This would ensure that the labels of offences reflected the moral equivalence between substantive offences and ‘complete’ attempts to commit them. However, it would be alien to ordinary linguistic usage, would sometimes misrepresent the external events which took place, and would in turn blur the distinction between complete and incomplete attempts. This last point suggests that on balance it is preferable to retain the labelling distinction between attempts and substantive offences, classifying complete attempts as attempts even though they do not differ in point of culpability from substantive offences”.

6 “Criminal Attempts…”, supra n. 3, at 750–753.

7 See, e.g., “Belief…”, supra n. 3, at 16–17.

8 Ibid., at 17.

9 “Criminal Attempts…”, supra n. 3, at 748.

10 Ibid., at 739–741.

11 “Belief…”, supra n. 3, at 16.