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This is a fully general counterargument against anything. Take fraud. There are clear-cut cases: someone paints a rock yellow and sells it as a gold to some fool. There are also transactions which are not fraudulent, and neither party ends up feeling cheated.
And then there is a large grey area of transactions where one party really gets a raw deal and ends up regretting the transaction, but intentional deception by the other party is arguable.
Does this mean that we should throw up our hands in despair and strike fraud from the books as it only rewards people who are smart enough to stop just short of outright fraud? Few people seem to think so. Instead, most are happy to see obvious scammers punished, honest merchants go free and the people in between getting lengthy boring trials.
I will grant you that 'incitement of crimes' is not carving reality perfectly at the joints, because reality is not a bimodal distribution separated neatly by that line. But most of the offenses in criminal law work that way. Fraud. Rape. Murder. DUI. Either we pass arbitrary rules (blood alcohol has to be x for DUI) or we have general rules and leave the rest to the courts (such as manslaughter vs murder II vs murder I).
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