This article provides a comprehensive re-analysis of one of the thorniest problems of criminal jurisprudence, when it is proper to convict a defendant who has attempted the impossible. I begin by demonstrating that, contrary to received academic and judicial opinion, the common law defense of impossibility to a charge of attempt is both well-grounded and perfectly intelligible, being capable of accurate expression in a single sentence. I then account for the confusion regarding the defense by showing how the early courts that applied it were saying one thing while doing another, and how commentators and subsequent judges became misled by focusing on what the courts said rather than what they did. After showing that the defense is intelligible, I then show that it is normatively justified as well. I do this in two steps. First, I demonstrate that there is a principled distinction between moral and criminal responsibility, that the arguments for the rejection of the impossibility defense rest on an improper conflation of the two, and that a correct understanding of the nature of criminal responsibility undermines the force of these arguments. Second, I show that there is an inherent liberal bias built into the Anglo-American criminal law that supplies a principled basis for retaining the defense. I conclude the article by proposing a definition for attempt that both encompasses the defense and grounds it on a firm theoretical basis.
Once More Unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible
Once More Unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible
Recent Publications
- Common Law Liberalism: A New Theory of the Libertarian Society (Oxford University Press, 2024)
- “Diversity and Group Performance,” Encyclopedia of Diversity, Springer, 2024
- “Evading and Aiding: The Moral Case Against Paying Taxes,” with Christopher Freiman and Jessica Flanigan, Extreme Philosophy, ed. Stephen Hetherington, Routledge (2024)
- “Online Sports Betting Giants Place Their Bets Against Growing Rivals”
- “Liberal Tolerance for an Illiberal, Intolerant Age”
Recent News
- Advocacy group concerned pay-for-plasma clinics expanding to Ontario will hurt voluntary donations
- Jason Brennan and Hélène Landemore, Debating Democracy (University of Zurich’s UBS Center, 2024)
- Jason Brennan “Everything Wrong with Democracy” on the Alex O’Connor Podcast (January 28, 2024)
- On the affirmative action ruling, the Supreme Court got it half right
- Jaworksi on CHQR: Commercial-compensated plasma collections