Abstract

The punishment of criminal attempts brings to light, among others, the problem of identifying the proper criteria for determining criminal liability. Those who have taken the "orthodox" approach to criminal law theory have identified two main formal requirements for criminal liability, actus reus and mens rea. The orthodox conception of these requirements, however, is problematic for several reasons: the requirements are not distinct, they fail to accord descriptively with aspects of legal practice, and they lack adequate normative justification. In light of these deficiencies, it is important to provide a feasible reformulation of these requirements in order to address, among others, the problem of attempts. Such a reformulation of actus reus should begin by recognizing that the picture of human action as bodily movements caused by distinct mental events called "volitions" is inaccurate and theoretically unworkable. But a reformulation of actus reus cannot occur independently of mens rea: radical changes to actus reus will necessitate corresponding changes in mens rea. This is due to the considerable overlap which exists between the purviews of actus reus and of mens rea. Just as voluntariness is wrongly construed in orthodoxy as a mental element, separable from bodily movement in our assessment of action, mens rea is wrongly construed in orthodoxy as a mental event which is distinct from the action and is the locus of fault. This latter misinterpretation has led orthodox theorists to understand criminal attempts as mere "crimes of intent." But this approach to mens rea is mistaken. An acceptable reformulation of mens rea will show mens rea to be bound up closely in the concept of human action. Reformulating these requirements in this way will point to a theory of human action which integrates the mental and physical elements of action and which offers substantial advantages to criminal law theory, primarily in dealing with difficult cases. Finally, to return to the problem of attempts, this integrated approach not only explains why attempts should be held criminally liable, but it also points to better explanations for the present practice of disparate punishment for attempts and completed crimes