Harm and Culpability

By A. P. Simester; A. T. H. Smith | Go to book overview

2
Subjectivism, Objectivism and Criminal Attempts

R. A. Duff*


'SUBJECTIVISM' AND 'OBJECTIVISM'

It is no doubt sometimes unhelpful to portray controversies about the proper principles of criminal liability as controversies between 'subjectivism' and 'objectivism'.1 Certainly neither term picks out a single, unitary, position. Furthermore, some disagreements rather concern the scope of the 'subjective' itself: for example, should we analyse recklessness in terms of conscious risk-taking or of 'practical indifference', both of which could be portrayed as 'subjective' aspects of the agent's conduct?2 Nor can we always draw a clear distinction between the 'subjective' and the 'objective'. If we justify an ascription of recklessness by saying that an agent failed to notice some obvious risk because he did not care about it, 3 we are not simply explaining his failure to notice that risk in morally neutral terms: we are, rather, interpreting his conduct in the light of some normative, non-subjective, standard of appropriate care.4

In some contexts, however, there does seem to be a clear distinction between 'subjectivist' and 'objectivist' principles of criminal liability, and controversies which embody that distinction. One such context is the law of attempts. In this paper, I will show that one familiar 'subjectivist' account of the principles of criminal liability has radical implications for the law of attempts -- implications far more radical than its proponents seem generally

____________________
*
I am grateful for helpful comments from the participants in the seminar in Cambridge at which I gave a very early version of this paper, and from Andrew Simester and Andrew von Hirsch.
1
See Lord Diplock comments in Caldwell [ 1981] 1 All ER 961 at 965-6; Lawrence [ 1981] 1 All ER 974 at 982.
2
See my Intention, Agency and Criminal Liability ( Oxford, 1990), ch. 7.
3
See, e.g., Sheppard [ 1981] AC 394 at 408; Pigg [ 1982] 1 WLR 762 at 772; and my op. cit., n. 2 above, at 162-3, 170-1.
4
See A. W. Norrie, "Subjectivism, Objectivism, and the Limits of Criminal Recklessness" ( 1992) 12 Oxford Journal of Legal Studies 45.

-19-

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