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YAFFE'S ATTEMPTS
Published online by Cambridge University Press: 28 August 2013
Abstract
Yaffe's handling of two general questions is assessed in this review. The first question is why mere attempts (as opposed to successful wrongdoing) should be made punishable in a well-conceived criminal code. The second question is how attempt liability should be conceived in such a code. As to the first question, Yaffe's nonsubstantive mode of answering it (in terms of his “transfer principle”) is contrasted to answers based on some more substantive desert-bases; Yaffe's own more substantive kind of answer (in terms of a desert-base of “faulty modes of reason recognition and response”) is examined in light of the implication that the traditional requirements of trying and intending are mere proxies for faulty reason recognition and response as the basis for blaming and punishing attempts. As to the second question, Yaffe's analysis of trying in terms of a “guiding commitment view” is examined in some detail. Canvassed here are the subquestions of: (1) whether appropriate assessibility by certain norms of rationality can give the nature of intending and thus of trying; (2) whether the externally de dicto intent requirements of criminal law statutes can easily be interpreted and applied by standard, extensional methods; (3) whether the distinctions between various kinds of elements within the content of intentions, can be justified ontologically or only practically; (4) whether actors necessarily intend results of their actions that are “very close” to other results that clearly are intended, and if not, whether such actors are nonetheless just as blameworthy for those results as if they did intend them; and (5) whether intention with respect to circumstance-elements differ (in either their psychology or in their moral effect) from beliefs with respect to such circumstance-elements.
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References
1. Gideon Yaffe, Attempts: In the Philosophy of Action and the Criminal Law (2010). All parenthetical page references in the text of this review are to Yaffe's book.
2. University of Pennsylvania Law Review Annual Symposium, Michael Moore's Act and Crime, 142 University of Pennsylvania Law Review 1443–1840 (1994), remarks by Michael Bratman, Philadelphia, February 18, 1994.
3. I taxonomize Anglo-American criminal law—it's “general part”—into these seven relationships between act and bad state of affairs, in Moore, Michael, The Specialness of the General Part of the Criminal Law, in The Sanctity of Life and the Criminal Law: Essays in Honour of Glanville Williams 69–105 (Baker, Dennis ed., 2012)Google Scholar.
4. On this dependence (of the theory of legislation upon the theory of punishment) Doug Husak and I have long agreed. See Moore, Michael, A Theory of Criminal Law Theories, in Tel Aviv Studies in Legal Theory (Friedman, Dan ed., 1990)Google Scholar, reprinted in Michael Moore, Placing Blame: A General Theory of the Criminal Law 70–71 (1997); Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008), at 57; Moore, Michael, Liberty's Constraints on What Should Be Made Criminal, in 4 Criminalization: The Aims and Limits of the Criminal Law (Duff, R.A., Farmer, L., Marshall, S.E., Renzo, M. & Tadros, V. eds., 2013)Google Scholar.
5. Moore, Placing Blame, supra note 4, chs. 1–4.
6. Id. at 68–73, ch. 16; Moore, Liberty's Constraints, supra note 4.
7. Moore, Placing Blame, supra note 4, ch. 4.
8. Id., ch. 5; Michael Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009), at 30–31; Moore, Four Friendly Critics: A Response, 18 Legal Theory 491–542 (2012), at 505.
9. Moore, Placing Blame, supra note 4, ch. 5; Moore, Causation and Responsibility, supra note 8, ch. 2; Moore, Michael, Further Thoughts on Causation (and Related Topics) Prompted by Fifteen Critics, in Causation and Responsibility: Critical Essays 10 (Stepanians, Markus & Kahmen, Benedikt eds., 2013)Google Scholar.
10. See, e.g., Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability (2008).
11. Id.
12. The so called “mental action” folks were right about this (although not about actions). For citation and discussion, see Michael Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (2d paperback ed. 2010), at 95–108.
13. Moore, Placing Blame, supra note 4, ch. 9, Prima Facie Moral Culpability.
14. I generalize because of what I regard as a general danger for philosophy, which is not to know where explanations should stop in this context. In this connection I think of the work of my late friend and colleague in the Southern Californian philosophical community, Jean Hampton. Hampton so complicated the mental states required for one to be culpable that I once complained to her that the only people ever eligible for blame were philosophers (and very reflective philosophers at that). See Hampton, Jean, Mens Rea, 7 Soc. Phil. & Pol'y 1 (1990)Google Scholar.
15. Id., ch. 13.
16. Aquinas. Summa Theologica, II–II, Question 64, Art. 7.
17. See, e.g., Moore, Michael, Intention as a Marker of Moral Responsibility and Legal Punishability, in The Philosophical Foundations of Criminal Law 179–205 (Duff, Antony & Green, Stuart eds., 2011)CrossRefGoogle Scholar.
18. “Intentional” with a capital “I” is a philosophical term of art. It denotes a property of “being-directed-upon-an-object.” In this sense, an intention is just one of numerous Intentional states.
19. I pursue this history in greater detail in Moore, Act and Crime, supra note 12, at 137–149.
20. Davidson, Donald, Actions, Reasons, and Causes, 60 J. Phil. 685–700 (1962)CrossRefGoogle Scholar.
21. Donald Davidson, Intending, in Essays on Actions and Events 83–102 (1980).
22. Michael Bratman, Intentions, Plans, and Practical Reasoning (1987).
23. Aristotle, De Motu Animalium, 701* 7–15. Cited in Martha Nussbaum, Aristotle's De Motu Animalum (1978). See generally, Anthony Kenny, Aristotle's Theory of the Will (1979), at 142–143.
24. Alvin Goldman, A Theory of Human Action (1970), at 62.
25. See Moore, Intention as a Marker, supra note 17, at 197–205.
26. Donnellan, Keith, Reference and Definite Descriptions, 75 J. Phil. 281–294 (1966)Google Scholar.
27. Compare Yaffe's admirable clarity on this (100–101) to Edwin Keedy's well-known, contrary analysis in Keedy, Edwin, Criminal Attempts at Common Law, 102 U. Pa. L. Rev. 464–489 (1954)CrossRefGoogle Scholar.
28. This (essentially Quinean) view applies to intended acts and events; it does not apply to enduring objects, such as the person I intend to kill. Transworld identity conditions for objects are sufficiently robust that we have some confidence that the Jones who will be killed (or die) at t2 is the very same Jones about whom the actor is forming his intention at t1. Not so for events like deaths and acts like killings. On transworld identity conditions for events, see Moore, Causation and Responsibility, supra note 8, at 413–414. For extreme skepticism about transworld identity conditions for events, see Hubl, Phillip, Events over Facts: Why Metaphysics Matters to Law, in Causation and Responsibility: Critical Essays (Stepanians, Markus & Kahmen, Benedikt eds., 2013)Google Scholar.
29. W.V.O. Quine, Word and Object (1960).
30. Perry, John, Intentionality-I, in Blackwell's Companion to the Philosophy of Mind 386–395 (Guttenplan, Samuel ed., 1994)Google Scholar.
31. Indeed, criminal law mandates this construal explicitly. Model Penal Code section 2.02(9), for example, disallows mistakes of legal interpretation by an accused as an excuse. Such disallowance thus negates any inference that the law requires that an attemptor's intention have content framed in terms of legal categories such as “asport.” However, this negative conclusion is pretty much common sense anyway. What the criminal law does not do is give any positive help in specifying what content is required for conviction.
32. Moore, Act and Crime, supra note 12, at 192–213.
33. Palsgraf v. Long Island RR, 162 N.E. 99 (N.Y. 1928).
34. On mental states being but another kind of circumstance, compare Yaffe, Attempts, supra note 1, at 75–76, with Moore, Act and Crime, supra note 12, at 198–199. On there being no significant difference between acts, such as killing, and results, such as death, caused by defendant, compare Moore, Act and Crime, supra note 12, at 225–238, and Moore, Causation and Responsibility, supra note 8, at 7–14, with Yaffe, Attempts, supra note 1, at 77–81. See also the continuation of the discussion in Yaffe, Gideon, Moore on Causing, Acting, and Complicity, 18 Legal Theory (2012), 437–458CrossRefGoogle Scholar; and Moore, “Four Friendly Critics, supra note 8, at 513–526.
35. I first deal with these in Moore, Michael, Intentions and Mens Rea, in Issues in Contemporary Legal Philosophy (Gavison, Ruth ed., 1987)Google Scholar, reprinted in Moore, Placing Blame, supra note 4.
36. R.A. Duff, Mens Rea and the Law Commission Report, Crim. L. Rev. 147–160 (1980), at 153.
37. I distinguish four moral contexts when the intent/foresight distinction is crucial in Moore, Intention as a Marker, supra note 17, at 179–181.
38. Moore, Four Friendly Critics, supra note 8, at 495–498.
39. See Moore, Causation and Responsibility, supra note 8, at 169.
40. I survey this history in Moore, Four Friendly Critics, supra note 8, at 497–500.
41. Id. at 498–499.
42. Jonathan Bennett, The Act Itself (1995), at 213. (“Tight binding” is Bennett's term for closeness of results.) I take it that Bennett's “plain-main inconceivability” lies somewhere between true inconceivability (nonsense) and Vizzini's “inconceivability” in the 1987 film The Princess Bride. The plain man's usage should not be subject to the Spanish swordsman's admonition in the film: “I do not think that word means what you think it means.”
43. Delaney, Neil, Two Cheers for “Closeness”: Terror, Targeting, and Double Effect, 137 Phil. Stud. 335–367 (2008)CrossRefGoogle Scholar, at 348–349.
44. On the other, other hand, “just as bad,” in terms of the three criteria Yaffe gives, is not all that crisp either.
45. Bentham, Jeremy, Introduction to the Principles of Morals and Legislation (Buffalo, NY: Hafner, 1988)Google Scholar, at 88 (“The circumstances of an act are no objects of intention.”).
46. Bentham argues that since we do not cause circumstances to exist by our actions, we cannot be motivated by their presence. That is why he concludes that “consequences are objects of the will [intention], as well as of the understanding [belief]: circumstances . . . are objects of the understanding only.” Id. I defuse this idea in Moore, Act and Crime, supra note 12, at 203–204.
47. United States v. Fountain, 768 F.2d 790 (7th Cir. 1985). I discuss a version of this case in Moore, Act and Crime, supra note 12, at 204–205.
48. See Moore, Act and Crime, supra note 12, for discussion of the two kinds of attempted rapists.
49. About the only moral salience one could find here might be linked to David Kaplan's old idea that some names and descriptions are particularly vivid to different people. See discussion, infra notes 56–59.
50. See discussion and authorities cited supra note 28.
51. At least, I think it is. At one point Yaffe does give this kind of example:
- (1)
(1) D intends (to steal from the star of The Terminator).
- (2)
(2) The star of The Terminator is the governor of California. Therefore:
- (3)
(3) D intends (to steal from the governor of California. (149)
If, again, the victim's being the governor of California is the circumstance element of a kind of theft crime, then this externally de re inference allows the conclusion that D has an intention with regard to that circumstance. I refuse to so interpret Yaffe because he puts his analysis in terms of first-person assertions by the actor; as such, (2) becomes an assertion by the actor “in order to express his belief,” as Yaffe puts it (149). In general, I find Yaffe's first-person assertions (of intention's contents as well as of propositions believed) to be an unhelpful expository device because it clouds issues just like this one.
52. Such as Keedy, supra note 27.
53. Because Yaffe restricts substitution of descriptions in his internally de re intentions, I do not think Yaffe (in making the move shortly to be described in the text) can be construed to be talking about externally de re intentions. This is because Yaffe (unlike, say, Keedy) does not treat as the same an intent (to steal from Arnold Schwarzenegger) and an intent (to steal from the governor of California), even when Arnie is the governor of California.
54. An alternative construal of what Yaffe is up to here would be that he merely wishes to show how an intention with regard to a circumstance—when one has such an intention—does generate commitments weaker than the motivational commitment to causing a circumstance to exist and yet stronger than like commitments based on beliefs with regard to the circumstance. This would be to infer the existence of a rational/logical commitment from the existence of an intention with a certain content; whereas the stronger alternative considered in the text is to infer the existence of an intention of a certain content from the (psychological) existence of commitments of nonreconsideration and nonregret. The discussion in the text that follows is to the point in assessing this alternative, weaker train of argument by Yaffe as well as the stronger form explicitly dealt with in the text.
55. Actually, Yaffe speaks of” insalience” as “blocking” the inference from belief to intention. Yet Yaffe needs it to be the other way: it is the salience of some description of some circumstance that permits the inference from belief to intention, not the insalience that blocks an otherwise permissible inference. For what would permit the inference if it were not something like salience?
56. Kaplan, David, Quantifying In, in Words and Objections: Essays on the work of W.V. Quine (Davidson, D. & Hintikka, J. eds., 1969)Google Scholar.
57. Moore, Intentions and Mens Rea, in Placing Blame, supra note 35, at 465. See also Michael Moore, Foreseeing Harm Opaquely, in Placing Blame: A General Theory of the Criminal Law (1997), at 382.
58. Moore, Placing Blame, supra note 4, at 465.
59. Yaffe actually hedges a bit here: Insalient facts, “even those which one believes to be present, often do not make their way into the contents of our intentions” (153). This seems to turn salience from being a content supplement in the second disjunct of Yaffe's commitment criterion into a mere proxy for what is in fact independently in the content of one's intention in the first disjunct of Yaffe's commitment criterion. He thus needs not to hedge if he is making the argument I attribute to him.
60. The same kind of argument can be mounted for a greater commitment against complaining after the fact that the circumstance turned out to have been present.
61. The answer should be “no” because of the disjunctive nature of Yaffe's commitment criterion: what is already within the literal content of an intention is committed to by the first disjunct of that criterion and does not need to be bootstrapped into that content (by being the source of the two commitments making for intention with regard to a circumstance).
62. Hampshire, Stuart, Review of The Concept of Mind, 59 Mind 237–255 (1950)CrossRefGoogle Scholar.