Provocation and Responsibility

By Jeremy Horder | Go to book overview

1
The Early Centuries of Development

[I]t was the Popish power that introduced the clergy to be given for manslaughter . . . in diminution of the Common Law and of Regal power, yea, and of the Law of God also . . . And by the law of God I find no difference between hot blood and cold blood as we do now distinguish.1

The emergence of a 'doctrine' of provocation is a comparatively recent development. Accordingly, many commentators on the history of the effect of provocation in law have commenced their studies with the search for the moment in the early modern period (or later) when the doctrine of provocation as such can authoritatively be said to have emerged.2 That is, arguably, the wrong place to start.

It is an error to suppose that, if there was no doctrine of provocation before early modern times, provocation cannot have had an important effect on criminal responsibility in medieval times. Our focus is the effect of provocation on responsibility, legal and moral. Though the doctrine of provocation will naturally play a key role in the analysis in ensuing chapters, we must thus look further back historically than any supposed emergence of a 'doctrine' of provocation. My hope is that doing so will not only yield historical insights valuable in themselves but will enrich much of the subsequent discussion.3


1. EARLY CATEGORIES OF HOMICIDE

An important pillar meant to support the supremacy of royal power in medieval England was the establishment of the king's jurisdiction over all

____________________
1
The words of Aske J. in Buckner's Case ( 1655) Style 467, 469.
2
Cf. Singer ( 1986: 249-61); Snelling ( 1958: 790-2).
3
Although the 'will' theory and the speculations about the embryonic doctrine of provocation are my own, the historical foundations for this chapter owe a great deal to Prof. Green's excellent research ( 1976; 1985). Anyone who has read his work will recognize the extent of my debt. It is important to make it clear, though, that he bears no responsibility for the way in which I have employed his materials. Where he has been circumspect and guarded in his own observations and suggestions, I have been confident and categorical. This is simply because I find his historical analysis so convincing.

-5-

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Provocation and Responsibility
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vi
  • Preface vii
  • Acknowledgements viii
  • Contents ix
  • Abbreviations x
  • Table of Statutes xiii
  • Table of Cases xiv
  • Introduction 1
  • 1- The Early Centuries Of Development 5
  • 2- The Seventeenth Century 23
  • 3- Honour, Anger, and Virtue 43
  • 4- Anger as Outrage 59
  • 5- The Rise of Loss Of Self-Control 72
  • 6- Justifying Mitigation Morally 111
  • 8- Excusing Action in Anger 156
  • 9- Anger, Mitigation, and Gender 186
  • References 199
  • Index 205
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