Abstract

Joel Feinberg wants to close "the gap" between our treatment in the law of failed and successful attempts. To administer the same punishment to agents who differ only in luck "introduces [into the law a corrosive] element of arbitrariness." So Feinberg is a "reformist": "if the law is arbitrary in some respect, then provided we can improve it in that respect at a reasonable cost in other values, we should improve it." The improvement Feinberg proposes is simply to eliminate the causal component from the definition of crimes.

The discussion is vintage Feinberg: a subtle, clear, and insightful exploration of a fascinating moral issue. I would like to be able to say that I agreed with his main conclusion; or else, I would like to be able to say that I disagreed. I find myself instead in a state of "reflective disequilibrium." My ambivalence is apparently typical: we cannot on reflection produce a rationale for what we are inclined emphatically to affirm. This failure sows the seeds of theoretical doubt without in practice undermining our inarticulate confidence that the gap remains. So it is with me, anyway, and with most adults the world over.

My ambivalence about Professor Feinberg's conclusion does not prevent me from having views about his arguments. In what follows I want to comment on the case for reformism, and on some of the methodological and moral issues it raises.

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