Criminal Culpability as Distinct from Moral Blameworthiness
Many scholars treat legal theory as the theory of something else (for example, economics or morality) applied to decisions about legal rules. Yet it is really an autonomous discipline. Legal theory focuses on obligations one may be coerced to fulfill and asks what justifies forcing free beings to respect these obligations. Let me illustrate with the following example.
Serele tells Berele she wants to buy a DVD player. Berele informs Serele of a store he knows that sells stolen electronic equipment cheaply. Berele has this on rumour; in reality the store is quite legitimate. Serele goes to the store recommended by Berele and buys a DVD player she thinks was stolen but which was in fact purchased from the manufacturer. Is Serele guilty of an attempt to handle stolen goods?
A moral theorist might reason as follows. Serele intends a wrong and takes steps which, had the DVD player actually been stolen, would have constituted a crime. That the player was in fact not stolen is a feature of the objective world that is irrelevant to our moral evaluation of Serele's choice. She believed it to be stolen and bought it nonetheless. She could have rejected her inclination to purchase the player but she chose to satisfy it instead. Her action is thus morally blameworthy. It is also culpable before the law, because criminal culpability is just the application of the moral concept of blameworthiness to conduct that breaches a legal rule. Indeed Serele is no less blameworthy than if she had actually purchased a stolen player, since the fact of the player's not being stolen was for her purely a matter of chance. It is for our choices that we are blameable, and Serele's choice was to purchase a stolen player, not to try to and fail. In any case, Serele is certainly guilty of an attempt to handle stolen goods.
In no other field than criminal law is the temptation to treat legal theory as applied moral theory greatest. Yet consider what follows from doing so. Suppose Serele, firmly intending to buy a stolen DVD player, drove to the store but found it closed. Our moral theorist is committed to treating this too as an attempt to handle stolen goods, for the store's being closed is again irrelevant to our evaluation of her choice. Suppose she had, with the same firm intention, got into her car but then changed her mind because she remembered a more pressing errand and decided to postpone her purchase until the following day. Indeed, suppose she did nothing but choose to make her wish to buy a stolen DVD player an aim of action but took no steps to realize it because someone unexpectedly bought her a DVD player as a gift. In these scenarios, the moral theorist's reason for punishing Serele in the first case applies with equal force. She intended a wrong but did not complete it because of something irrelevant to our moral assessment of her choice.
It might be said that in the last two cases, Serele changed her mind and so her ultimate choice was not to commit a wrong. Moreover, even if her choice was to commit a wrong, how could we know this without an act evidencing such a choice? Serele's change of mind does not affect her moral blameworthiness if what motivated the change was not the wrongness of the action but a stronger desire. For Serele has only revised her opinion of what best serves her advantage; she hasn't altered her decision to put her advantage above respect for law. And while an act of purchasing the DVD player would be cogent evidence of a blameworthy choice, it's not the only evidence; if we were otherwise sure (from a confession, let's say) of a blameable intention that she failed to execute or chose not to for nonmoral reasons, why require an act? What's the difference between punishing Serele for her immoral intentions and punishing her for an act she believes is wrong but that is wholly innocent?
If treating criminal culpability as moral blameworthiness for law-breaking leads to punishing for thoughts, what's the alternative? One possibility is to view the theory of criminal culpability as a theory specifically about what justifies judicial punishment - the deprivation of someone's rights - as opposed to what justifies moral disapproval generally. Such a theory would be a distinctively legal theory of culpability, because it would try to identify the elements, not of blameworthiness in general, but of liability to punishment by the state. Such a theory might look something like this.
A state instituted to protect rights of liberty can legitimately deprive someone of liberty only if that person has implicitly assented to the deprivation by acting on a principle that implies the non-existence of rights. Merely contemplating a wrong carries no such implication, for unless there is an act embodying the intention, the latter remains a private thought claiming no public validity. Actually violating a right is one way of publicly embodying a right-denying intent, but it is not the only way. One can also claim validity for a denial of rights by committing an act that cannot reasonably be interpreted otherwise than as manifesting a criminal intent. That would be a test for determining the point at which acts furthering a criminal intent amount to an attempt in law. On that test, Serele is innocent of an attempt to handle stolen goods, though she might be guilty if the surrounding circumstances were such as to leave no ambiguity concerning the public meaning of her act.