Criminal Attempts—The Rise and Fall of an Abstraction

Abstract

A discussion of the law of criminal attempts usually commences with the statement that the problems involved are intricate and difficult to solve and that the cases are hopelessly confused. Legal problems are spoken of as confused under two different sets of circumstances. First, where courts are doing inconsistent things with similar fact situations, and second, where courts are attempting to make the same rule cover utterly dissimilar situations. In the first case the legal writer usually attempts to justify one treatment or the other. In the second case he makes an effort to reformulate the rules so that all or a great majority of the cases may appear reconciled with them. This often involves the making of generalizations even broader and vaguer than the original ones. It also usually involves the creation of elaborate logical machinery for sorting the dissimilar situations without exposing their complete dissimilarity. Once this is done the opportunity is given to ingenious attorneys to search far and wide for cases which no one would ever consider treating the same as the case being argued except for the fact that they come under the same so-called general principles and the court speaks of them all in the same general language. These cases must be distinguished, and of course the court has great difficulty in doing so. In the attempt, however, hundreds of pages of legal literature are written.