Wednesday, October 27, 2021

More on attempted murder and attempted theft

In an old post, I observe the curious phenomenon that a typical attempted murder is not an attempt to murder and a typical attempted theft is not not attempt to steal. For one only attempts to do something that one intends to do. But that the killing or the taking in fact constitutes a murder or a theft is, in typical cases, irrelevant to the criminal’s ends. For instance, in typical cases of theft, if it were to turn out that the object is in fact abandoned property, the thief’s ends would be just as well served by taking the object. Hence, the thief’s end is to take the object, and whether the object is owned by someone, and hence whether the taking constitutes theft, is irrelevant to the thief’s ends, and hence is not intended.

I then attempted to come up with an account of “attempted M” for a broad spectrum of misdeeds M. The idea was that “M” is a thick and morally loaded description, such as “murder” or “theft”, while there is thin and morally unloaded description “N”, such as “killing” or “taking”. Then I suggested that:

  1. An action is an attempted M if and only if the agent is trying for N in circumstances in which success at N would constitute M.

But I wasn’t happy with (1) in light of a weird counterexample of trying to shoot someone with a smart raygun that, unbeknownst to the shooter, only shoots people whom it is just to kill, and doing so in a case where the killing would in fact be unjust. This seems a clear case of attempted murder (only attempted, because the raygun recognized that the killing would be unjust and refused to fire). I said that the problem with (1) is that in these circumstances success at killing would not constitute murder, since the raygun would only succeed if the killing weren’t a case of murder.

My analysis of the counterexample needs a bit of work to spell out. The actual circumstances include two kinds of facts:

  1. the facts in virtue of which killing the victim would be murder (the victim’s innocence, etc.), and

  2. the fact that the raygun cannot be used to commit murder.

When we ask whether success at killing would constitute murder, we are asking a counterfactual question, and we now need to be clear on whether we keep fixed (a) and drop (b) or keep (b) fixed and drop (a). To have a counterexample to (1), we need to ensure that the right way to evaluate the counterfactual about success at killing involves fixing (b) and dropping (a). I think we can ensure this. We can presumably set things up so that the raygun refuses to commit murder at all nearby worlds, but at some nearby world the victim is an aggressor whom it is permissible to kill. But this should have been stated.

So, it does seem we have a counterexample to (1). One might attempt to fully subjectivize (1) as follows instead:

  1. An action is an attempted M if and only if the agent is trying for N and believes that success at N would constitute M.

But this is mistaken. An SS officer might have convinced himself that the killing of innocents that he is attempting is not in fact a murder, but that doesn’t make it not be a murder (whether the convincing reduces culpability is a separate question).

I think what we actually want to do is keep the moral standards objective while subjectivizing everything else. Roughly, we want something like this:

  1. An action is an attempted M if and only if the agent is trying for N and were the moral standards fixed as they actually are and were the rest of the circumstances as the agent believes them to be, then the success at N would constitute M.

I doubt this captures all the cases, but it makes some progress over (1) I think. I suspect that our concept of an attempted murder or an attempted theft is rather messy and gerrymandered.

Note that (3) does not fit with the legal doctrine of “impossible attempts” on which an attempt that “couldn’t succeed” doesn’t count. Thus, attempting to kill with magic spells does not legally count as attempted murder, even though (3) says it is attempted murder. In this case, I am inclined to just say that the legal doctrine is false to the phrase “attempted murder”, but there is good reason not to prosecute such impossible attempts (say, because doing so leads to prosecution of “thought crimes”). If we want to build in a doctrine of impossible attempts, we can add to (3) the claim that there is an epistemically nearby world where the circumstances other than moral standards are as the agent believes them to be, where the epistemic nearness is measured by the standards of a reasonable person rather than perhaps the agent.

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