The Intoxication Defense and Theories of Criminal Liability: A Praxeological Approach

By Shain, Martin; Higgins, Gillian | Contemporary Drug Problems, Winter 1997 | Go to article overview

The Intoxication Defense and Theories of Criminal Liability: A Praxeological Approach


Shain, Martin, Higgins, Gillian, Contemporary Drug Problems


This paper applies an emerging method of research, "legal praxeology, " to the study of decisions concerning intoxication as a defense to criminal charges. This method is based on the observation that judges import their own values, attitudes and beliefs into their decisions in identifiable ways. We observed this phenomenon in 40 cases and deduced that judicial views about the intoxication defense are organized around two major constructs that themselves are drawn from the substrate of judicial views concerning the basis of criminal liability in general. The resulting two-dimensional analytic framework was then applied to the leading Canadian case, R. v. Daviault [1994]3 SCR 63. We observe that majority and minority opinions of the Supreme Court in Daviault fall out along the dimensions extracted from the 40 cases, as does the text of the legislative amendment introduced in the wake of the decision (Bill C-72, now S.33.1 of the Criminal Code of Canada). In Daviault, the Canadian Charter of Rights and Freedoms plays a significant role in challenging the judges of the Supreme Court to identify their fundamental values and beliefs. We conclude that the Charter is a benign catalyst to the development of legal praxeology in that it calls for a more declarative, and thus public, jurisprudence. Charter-assisted legal praxeology goes some way toward revealing the great social value tensions locked up in what at first appear to be purely legal doctrinal disputes concerning the scope and application of the intoxication defense.

The specific objective of this article is to locate apparent and real inconsistencies in the criminal law governing the intoxication defense within a general framework that seeks to explain such variation in terms of differences in judicial frames of reference. The broader purpose of the article is to contribute to the development of a methodology for juridical analysis of the type called for by Nicola Lacey in her critical essay on the role of intention in criminal law.1 Although Lacey does not use the term as such in her article, we take her exhortation to be a call for the further conceptualization and development of "legal praxeology," which is presented as a constructive form of Critical Legal Studies.2

For purposes of this article, legal praxeology is essentially a qualitative research method that uses social science tools of content analysis and mapping. Its assumption is that the nature of legal decisions is contingent upon the culture and times in which law is practiced. This assumption is unlikely to stir much surprise among social scientists because they are accustomed to the idea of cultural and temporal contingency. But to many lawyers, even to those of the academic kind, the notion is subversive to the cherished ideal of law as the embodiment of immutable justice. More will be said of this tension later.

The intoxication defense is in many ways an ideal candidate for exposure to this form of analysis, since it lies at the nexus of competing, sometimes colliding, values and beliefs in law and society regarding the nature and extent of free will, causality, individual responsibility, and the duties we owe one another and their relevance to the basis of criminal liability itself.

Conventional doctrinal analysis of the inconsistencies that characterize the law governing the intoxication defense has tended to concentrate on technical distinctions between crimes of general intent and of specific intent.3 Although this has been helpful up to a point, it has fallen short of an analysis that places these sometimes tortured distinctions within a conceptual framework adequate for purposes of understanding the ideological differences driving them. As a form of juridical analysis drawing upon the tradition of Legal Realism, Law and Society, and Critical Legal Studies, Legal Praxeology offers a unique perspective on the socioeconomic, cultural and political contexts within which variations in judicial pronouncements on the intoxication defense have been made and continue to be made.

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