Abstract
Bertrand Russell once remarked on the utility of keeping at hand a stock of puzzling examples with which to test philosophical theories.1 Those seeing the wisdom in Russell’s remark, and wishing to find a good source of examples, need look no further than the law. Want a case to test a theory of causation? Consider the countless legal cases, many far beyond the imaginative powers of philosophers, which turn crucially on whether and why an agent’s act or omission could sensibly be said to have caused damage to the defendant or to the victim. Is one who stabs a fellow brawler the cause of the latter’s death if that death would not have occurred but for an allergic reaction to treatment routinely administered in all such cases?2 Would it have mattered if some measure of medical negligence had been involved, or if, in addition to all this, the unfortunate victim’s stretcher had been dropped several times on the way to the operating theatre?3
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Notes
‘A logical theory may be tested by its capacity for dealing with puzzles, and it is a wholesome plan, in thinking about logic, to stock the mind with as many puzzles as possible, since these serve much the same purpose as is served by experiments in the physical sciences.’ B. Russell, On Denoting in Logic and Knowledge: Essays 1901–1950, edited by Robert Marsh (London: Allen & Unwin, 1968), p. 47.
R.A. Duff, Criminal Attempts (Oxford: Oxford University Press, 1996). Unless otherwise indicated, all page references are to this text.
There is, of course, an even more fundamental question: whether and why agents who commit crimes should be punished at all. Duff argues that his ‘communicative model’ of punishment provides the only sound basis for his objectivist account of attempts. For a full-scale defence of the communicative model of punishment, see Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986).
Kant is famous for arguing that the actual consequences of an agent’s conduct are irrelevant to its moral and legal assessment. See, for example, I. Kant, Groundwork of the Metaphysics of Morals, trans. H.J. Paton, (New York: Harper & Row, 1964).
The felony-murder rule was abolished in England in 1957, but its ‘spirit survives in modern English law in the law of manslaughter: if D commits a criminal offence which produces a risk of harm to another person, and death results from that offence, the crime may be manslaughter … Even though the sentence is unlikely to reflect the death fully, the label (manslaughter) is serious.’ (A. Ashworth, Principles of the Criminal Law (2nd edn, Oxford: Clarendon Press, 1995), pp. 153–4. Canada, like many American states, has adopted a full-blown ‘felony-murder rule’. Section 229 (c) of the Criminal Code of Canada states that ‘Culpable homicide is murder… (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.’
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© 2001 Palgrave Macmillan, a division of Macmillan Publishers Limited
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Waluchow, W.J. (2001). On Criminal Attempts. In: Kramer, M.H. (eds) Rights, Wrongs and Responsibilities. Palgrave Macmillan, London. https://doi.org/10.1057/9780230523630_3
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DOI: https://doi.org/10.1057/9780230523630_3
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