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Published online by Cambridge University Press: 23 October 2013
Central to Gideon Yaffe's powerful theory of the legitimate criminalization of unsuccessful attempts is his “transfer principle,” according to which, “if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I argue that this principle, taken together with Yaffe's theory of the nature of attempts, threatens to lead to a normatively problematic conclusion in support of the legitimate criminalization of attempts that are merely a matter of thinking and do not involve action in the public space. And I argue that Yaffe's efforts to block this conclusion are themselves problematic. This leads to a proposed revision of the “transfer principle,” one that draws on plausible normative views about the nonlegitimacy of criminal sanctions in cases of attempts that are merely a matter of thinking and do not involve action in the public space.
1. Yaffe, Gideon, Attempts: In the Philosophy of Action and the Criminal Law (Oxford University Press, 2010)CrossRefGoogle Scholar. Parenthetical page references in the text are to this volume.
2. See Austin, J.L., Ifs and Cans, in Philosophical papers 218 (1979)CrossRefGoogle Scholar.
3. I think this interpretation of “act” in the means requirement is also suggested by Yaffe's discussion of the relation between his means requirement and another requirement that he endorses: the “voluntary act requirement.” See, e.g., 220.
4. I say “roughly” to indicate that given the limits of this discussion I make no claim to have identified the only revisions to Yaffe's rich theory that are needed in this neighborhood.
5. This is one place where I am taking (*) to provide necessary conditions.
6. Here I am again taking (*) to provide necessary conditions.