Kadish and Shulhofer make the case for treating at least some failed attempts as crimes. More precisely, they argued that it can be legitimate to have laws punishing people for merely attempting to break a law, even if they do not succeed in doing so.
They propose that failures resulting from mistakes of fact are liable to criminal penalty but failures due to mistakes about the law are not.
Then they turn around and present an objection to that very distinction: the case of Mr. Fact and Mr. Law.
We talked a lot about the view that a person’s intent can be reduced to what that person does. This is not a very promising view. It’s true that it can be difficult to say exactly what a person intended to do. But we nonetheless often succeed in doing just that. As our friend Oliver Wendell Holmes noted, “Even a dog distinguishes between being stumbled over and being kicked.”** The Common Law (1909), p. 3.
We also talked about the distinction between mistakes of facts and mistakes of law. The issue is whether it can be legitimate for the criminal law to punish mere attempts to break the law. No one disputes that someone who successfully breaks the law is liable to criminal prosecution. We’re talking about people who try to break the law but fail because they made some sort of mistake.
For example, Lady Eldon made a mistake about the facts. She believed that she had French lace and she believed that it was illegal to bring French lace into England without paying tax. She was right about the law but wrong about the facts. In fact, she had English lace and so she was not violating the law. She attempted to break the law but failed because she made a mistake of fact.
Other attempts to break the law fail because of mistakes about the law. Suppose I believe that altering the register number on a check is a way of writing a fraudulent check. I’m wrong about this: the only way to commit fraud is to alter a material part of the check, like the account number. Here, my mistake is about the law: I think that the law forbids me from altering the register number when it does not do so. I’m right about the facts of what I’m doing, but I’m wrong about the law. So I attempt to break the law but fail because of a mistake of law.
Kadish and Shulhofer argue that the law should take note of this distinction. It can be legitimate to punish people for mere attempts based on mistakes of fact, but it is not legitimate to punish people for mere attempts based on mistakes of law. Elin and Max defended the distinction by saying that in the cases of mistakes of law, there is no law that they might have broken. Assuming that we can only punish people for violations of the law, there’s no basis for punishment.
Alex and others disputed this. They pointed out that the intentions are similar in both kinds of case. The people intend to break the law. They fail due to their mistakes. But their will is equally bad. Kadish and Shulhofer added fuel to the fire with their case of Mr. Law and Mr. Fact. Mr. Law and Mr. Fact each wrongly believe they are breaking the law by going hunting on October 15. Mr. Law is wrong because he believes that the hunting season doesn’t start until the first of November when it actually began on the first of October. Mr. Fact is wrong because he looked at the wrong page on the calendar and believes it is September; he knows that hunting season begins on October 1. Drawing a distinction between them, such that Mr. Fact can be liable to criminal sanction while Mr. Law cannot, seems arbitrary.
It’s an interesting dispute and I myself don’t know exactly what I think.