Selling the Inchoate Mode (forthcoming)

Do results matter in criminal law?Many say "No" and recommend redrafting crimes in "the inchoate mode."Others answer "Yes" and defend the division between complete and attempted offences.This paper considers a third (non-general) answer: "Sometimes".Could it be that in some contexts results matter significantly more than in others?Murder and fraud are contrasted; while the former appears to be a 'hard sell' for the inchoate mode, the latter has, at least in one major jurisdiction, passed into law and bedded down with apparent ease.Perhaps results matter in murder in a way they do not in fraud.Two contrasts are drawn, first that murder is a 'horrific crime', while fraud is not, and secondly, that the core of the wrong of kinds of fraud might be contained in the attempt.Maybe the mistake is to seek for a general answer to the question of whether results matter.I. THE HARD SELL: MURDERAs law reform proposals go, "abolish murder" is among the most startling.But no less a philosopher of the criminal law than Joel Feinberg recommended exactly that. 1 Abolish murder, he urged, together with attempted murder, and replace both with the offence of "Wrongful Homicidal Behaviour".In making this proposal, Feinberg was responding to a familiar puzzle.There are numerous variations.One version cites the film and novel The Day of the Jackal, the fictional tale of an attempt to assassinate President de Gaulle.Here, the assassin fires his gun, but the President moves at the critical moment, so the bullet misses and he is unharmed.2 But what if another assassin, call her "Assassin 2", shoots in identical circumstances but this time the President makes no sudden movement and the bullet reaches the President and kills him?"Most legal practice throughout the world," Feinberg observes, "treats failed and successful attempts quite differently".Assassin 2 will be convicted of murder and sentenced (much) more heavily than Assassin 1.But why? Their intentions were identical.The different results in each case depended on factors beyond the control of either assassin.It is no credit to Assassin 1 that the President suddenly and unexpectedly moved.This is not a question of desert but of "luck pure and simple".3 Legal systems that countenance such different treatment are not, he suggests, committed to the principle of proportionality, which "requires that the severity of the punishment be proportional to the moral blameworthiness of the offense".Feinberg concludes that law like this is arbitrary and, "if the law is arbitrary in some respect, then provided we can improve it in that respect, at a * Reader in Law, King's College London.I am grateful for the very helpful comments of all participants at a seminar