The Subjectivism/Objectivism Debate - Assignment Example

Number: 0508886 Year Department: Law & Module: Criminal Law Question Number: No choice given Word Count: 2,412 TheLaw of Attempts: The Subjectivism/Objectivism Debate Within the framework of criminal liability, the concept of inchoate liability and criminal attempt seemingly emerge, not only as self-explanatory but, as intrinsic elements of a comprehensive structure for the evaluation and determination of criminal responsibility. A more critical review of these concepts, especially within the framework the law of attempts, exposes the complexities inherent therein. From the liberal point of view, to hold a person criminally responsible for a crime which has not actually been committed, although evidence indicates that it had been prepared for, implies holding people guilty on the basis of their thoughts alone.1 Indeed, attempts liability entails punishing a person for something which he has not actually done but which he had planned to do at some point in the future. As such, attempts liability is founded upon a “deeds principle” which appears in direct violation of the “harms principle” upon which the very concept of punishment is founded.2 The stated brings us directly to the subjectivism/objectivism debate which, in itself, reflects important controversies in the entire concept of criminal liability. From the orthodox academic viewpoint, criminal law presents actual legal doctrines, as in principles and legislature, and is concerned with its critical evaluation as regards whether or not it abides by the principled logic which academia claims to be inherent within the law itself. This enterprise has largely fallen to the subjectivists who have analysed the aforementioned from a mental elements’ perspective.3 Several legal scholars have claimed that this is nothing other than a politico-philosophical matter whose primary motivation is the correlation between legal principles and liberal conceptualisations of man as a free, moral and responsible agent.4 In essence, this has effectively split the law of criminal liability and subsequent interpretations. As may be inferred from the above stated, the subjectivism/objectivism debate effectively mirrors the existent tension between the principles of deed and equal culpability. The objectivist camp believes that criminal liability should be limited to what the person actually did, while the subjectivist camp upholds the expansion of criminal liability towards the embrace of the person’s state of mind. Accordingly, the objectivist camp upholds the principle of deeds and the subjectivist camp that of equal culpability.5 The complex nature of prevailing criminal law lies it that it is neither one nor the other but seeks the embrace of both positions. This lends to a myriad of puzzling questions, all of which combine to underscore the controversies inherent in the law of criminal liability. The first of these questions pertains to the concept of mens rea. Alexander and Kessler maintain that, in accordance with the principle of mens rea, a person may not be held liable for attempt without there having actually been intent to commit a criminal offence. 6 The implication here, as Husak maintains, is that the fault element for criminal attempt needs to be higher than for any other choate crime.7 This is problematic insofar as it immediately leads to the question of what, precisely, is an intent to commit a crime. As per the objectivist and the subjectivist divide, there are two answers to this. The first define intention as implying that “the agent would necessarily commit an offence in carrying it out.”8 The second response states that “intention should only be required for the conduct and the result elements, but not for the circumstance elements, of criminal attempts.”9 (Husak, 1997). Divergent responses, reflective of the objectivism/subjectivism divide, only compound the complexities inherent in the determination of criminal liability within the context of the law of attempts. Divergent interpretations of the concept of attempt, as illustrated in the preceding paragraph, are problematic when considering the import of attempt within the context of English criminal law. As Lord Goddard maintained in Whybrow [1951]10 “intent [is] the principle ingredient of the crime.” Indeed, the Criminal Attempts Act of 1981 has embodied this principle.11 As stated in the Criminal Attempts Act of 1981, “If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’12 The implication here is clear. If a person intends to rob a house but fails, he/she will be held liable for intended robbery and if he/she planned to enter a house and kill its occupants, but fails, he/she will be held guilty of attempted murder. If, on the other hand, a person enters a nursing home with the intention to rob, while knowing full well that if seen by any of the residents, the resultant alarm and shock could incite a heart attack culminating in death, he/she will only be held guilty of attempted robbery despite his/her knowledge of the potential consequences of their plan. The point is that the first act was intended but the second was not. The offender has the mens rea for the first crime but, not for the second. The second of the mentioned questions references the criteria by which the acteus reus of an attempt be determined. In other words, can determination be sufficiently based upon the preparation for a crime and, if so, at precisely what stage of the preparation can it consequently be determined. If not, should specification hinge upon the actual commission of the criminal offence? According to Alexander and Kessler from the purely objectivist position, a crime would have to be commissioned while, from a wholly subjectivist stance, preparation for the offence is sufficient. Once again, therefore, the interpretation of legal doctrine emerges as divided and controversial.13 As regards case law, critical analysis indicates that .while the Criminal Attempts Act seems to lean in favour of liability only if a person has committed or is in the process of committing a criminal act, case law suggests a tendency towards liability on the basis of recklessness. Elliot v C [1983], for example, held an individual to be reckless if he/she fails to avert a risk whose harms would have been evident to any reasonable person, reflecting an uncompromisingly objectivist stance.14 The third question which arises from the subjectivism/objectivism divide is infinitely more complex since, as Husak points out, it goes directly to the issue of impossibility and whether or not it should preclude liability. If a person intends to harm another, for example but, instead of shooting at him, shoots at a tree instead, can he be held liable for attempt, even if the offender did not take any further action to actualise the goal of harming the other and, indeed, was not suited for the actual imposition of any real harm? While the question seems sufficiently complex, its rephrasing in alternate terms will expose the depth of is complexity. Agent A, for example, is a trained killer and has been known to kill a person, on the spot, using a sling shot, with the implication here being that a sling-shot can be construed as a murder weapon. Agent B, however, has never used a sling-shot and in selecting it as the weapon of choice in his attack upon another, finds himself completely unfit to use it and, indeed, miserably misses his target and, therefore, resigns his attempts. Does this mean that Agent B, given the impossibility of his capacity to inflict harm with his weapon of choice, should or should not be held liable for criminal attempt? Subjectivism maintains that liability does not prelude impossibility while objectivism assumes an antithetical stance.15 Case law is particularly useful in elucidating the divide between subjectivism and objectivism as pertains to the question of impossibility. In Anderton v Ryan [1985], the Law Lords effectively set aside otherwise clear legislative principles by supporting the doctrine of impossibility.16 However, it can hardly be argued that this case established a precedent since case law effectively indicates that throughout the history of criminal liability, courts have wavered between subjectivism and objectivism, sometimes exhibiting outright hostility to the notion of impossibility and, at other times, openly supporting and embracing it.17 However, as Shute et al. explain, decisions pertaining to acceptance of liability have typically been made without counsel’s argument and, in the majority of such cases, have rarely been founded upon more than judicial assertion. In addition to that, hardly any attempts have been made to distinguish between the variant types of impossibility.18 Even while conceding to the fact that the failure to successfully complete the crime in question is central to determination of liability, the reasons why the accomplishment of the criminal attempt failed should be taken into consideration. For example, if A pointed a gun at B, with every intent to shoot and kill him/her but failed because the barrel of the gun was empty, should this not figure into the determination of liability/ Certainly, it was impossible for A to successfully accomplish the desired outcome of his crime but, only because, unknown to him, there were no bullets in the gun. Indeed, when perceived of from this perspective, the subjectivist approach emerges as the more attractive, possibly more reasonable, of the two. The fourth and final question which the debate imposes upon legal scholarship pertains to whether or not there should be a differentiation between those guilty of attempt as opposed to those which have been found guilty of an offence. Subjectivists maintain that if a person has done all that is within his/her capacity to do to ensure that a crime attains successful completion but, nonetheless, fails, failure should be disregarded. The person in question should be treated as if he/she had successfully accomplished the offence. Needless to say, the objectivists, or at least the purists among them, differ in opinion, maintaining that there is a natural difference between one who has failed to successfully accomplish his murder plan and one who has. This difference imposes itself upon jurists, irrespective of their opinion to the contrary and, effectively contributes to the prevalent tendency for the one to be given a lighter sentence than the other.19 Conversely, and returning to Anderton v Ryan where the defendant was charged with attempting to handle stolen goods which had not been stolen in the first place, the defendant was acquitted.20 From the subjectivist viewpoint, she should have been held liable, irrespective of the impossibility of her handling the stolen goods simply because the theft had not been successfully accomplished. As one contrasts the two examples given in the above, the complexities of impossibility become all the more apparent. The issue is complex because, in some instances, the subjectivist viewpoint emerges as the more rational one while, in others the objectivist stance is the more logical/just. Naturally, this highlights the import of judicial discretion but, beyond that, it emphasises the imperatives of both adopting a modified objectivist stance and of distinguishing between the various types of impossibility, not to mention the nature of the planned, but failed, criminal attempt.21 In other words, the resolution to this controversy seems to lie in the adoption of a mid-way position between subjectivism and objectivism while, at the same time, defining the various forms of impossibility.22 The questions raised in the above and which were subsequently analysed from both the perspective of both subjectivism and objectivism, effectively underscore the inherent controversy in the interpretation and implementation of the legal principles informing the law of attempt, not to mention general criminal offence. Both case law and legislature confirm the stated and, indeed, emphasise the imperatives of reconciling between these divergent perspectives. Indeed, the solution to the outlined controversy appears to lie in the adoption of a mid-way position between the two perspectives, this is hardly an adequate response. English law is fundamentally founded upon a mid-way approach, seeking reconciliation between objectivism and subjectivism. As evidenced in the foregoing, however, this has hardly settled the debate but, instead has left the matter to judicial discretion. The resultant problem is that many questions regarding liability for criminal attempt are without clear-cut answers. This, in itself, emphasises the imperatives, not of loosely adopting a mid-way position but, according to some legal scholars, adopting a modified objectivist stance.23 The reason why legal scholars have, apparently, moved away from subjectivism towards the embrace of a more objectivist perspective, eventually culminating in support for a modified objectivist stance is, seemingly, self-evident. More specifically stated, when evaluating both approaches, legal scholars have tended towards the identification of objectivism as the approach which best corresponds with, and reflects, the naturalist moral response to human actions.24 Within this context, therefore, it should hardly be surprising that courts have generally tended towards approaches which can be loosely identified as objectivist, rather than subjectivist. At the same time, however, it is impossible to override, or simply ignore the subjectivist approach because it goes to the very question of intent which is a fundamental component of criminal law and an intrinsic consideration in the determination and evaluation of liability. Mental culpability is an important consideration and courts have often rejected both legislative and prosecutorial attempts to override, or minimise this particular measure of culpability, asserting that intent cannot be ignored.25 Indeed, it cannot be but that does not imply that intent should be allowed to overwhelm outcome. In other words, outcome is the primary measure of liability but, intent is an extremely important one, as well. It is for this precise reason that the two approaches should be reconciled into a unified modified objectivism. As the foregoing discussion has tried to illustrate, the subjectivism/objectivism debate is reflective of deepest controversies within the framework of criminal liability, law of attempts and general criminal offence’s legislature and principles. The controversy, or divide, is a natural outcome of the outcome versus intent character of criminal offences and is founded upon such question as the stage at which intent becomes a criminal offence and the liability of offenders who are planning but, have not as yet, committed an offence. These are seminal questions and, accordingly, legal scholarship has repeatedly and persistently forwarded proposals for their resolution. The subjectivism/objectivism debate is an integral component of the aforementioned responses and, that debate shall only be resolved when, and if, these questions are clearly answered. As suggested in the above, the optimal answer, or response/resolution, lies in formulating and implementing a modified objectivist stance while maintaining judicial discretion over the evaluation and determination of liability in the law of attempt. Bibliography Alexander, L. and Kessler, K.D. (1997) `Mens Rea and inchoate crimes.’ Journal of Criminal Law and Criminology, 87(4). Anderton v Ryan [1985] 1 AC 560. Ashworth, A. (1988) `Criminal attempts and the role of resulting harm.’ Rutgers Law Journal, 19. Criminal Attempts Act, 1981. Elliot v C [1983] 1 WLR 939. Husack, D. (1997) `Attempts and the philosophical foundation of criminal liability.’ Criminal Law Forum, 8(2). Jabbari, D. (1999) `Reason, principle and cause in law.’ Oxford Journal of Legal Studies, 19(2). Kadish, S.H. (1994) `Foreword: The criminal law and the luck of the draw.‘ Journal of Criminal Law and Criminology, 84. Lopez, E.R. (2006) `Puzzles on defending others from aggression.” Law and Philosophy, 25. Lord Goddard [1952] 2 QB 743. Lord Hewart [1924] 18 Cr App R Lord Reading [1915] 2 KB 342, 349. Mathis, S. (2004) ‘Criminal attempt and the Subjectivism/Objectivism debate.” Ration Juris. 17, 3. Shute. S. et al. (1993) Action and Value in Criminal Law. Oxford, Clarendon Press. Williams, G. (1983) Textbook of Criminal Law, 2nd Ed. London: Stevens. Whybrow [1951] 35 Cr App R 141, 147. 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