Provocation and Responsibility

By Jeremy Horder | Go to book overview

5
The Rise of Loss of Self-Control

The man who lacks self-control is like a state which passes all the right decrees and has good laws, but makes no use of them.1

In this chapter I turn my attention to the foundations of the modern law. It is the longest chapter in the book. This is because my concern will not only be with the historical foundations of the law, which were laid through important developments in the eighteenth and nineteenth centuries. My concern will also, indeed it will primarily, be with the law's philosophical foundations, with the conception of anger underpinning the law, and with the influence of that conception of anger on the development of the substantive law.

During the eighteenth and nineteenth centuries, a new conception of anger emerged that was premissed on philosophical foundations that were different from those of the early modern law. The roots of that development lie in a change in the law's conception of the relationship between reason and the passions in the human soul, a change embodied in the work of the more modern writers on homicide as well as in the case law. These developments led to re-presentation of the entire doctrine of provocation in terms of anger understood as a loss of self-control.


1. PASSION AND REASON IN OUTRAGE

The early modern law took as its perspective for assessing the desert of mitigation the outlook of the virtuous and/or self-controlled man of honour, for whom anger is experienced as outrage. Linking that background perspective with that conception of anger was a distinctive understanding of the relationship between reason and the passions within the soul. In this relationship it is reason which is in the saddle, to use a favourite metaphor employed by the early modern theorists to make this point.2

In the honourable man of virtue, the desire for a certain retaliatory suffering and the amount of retaliation reason dictates as appropriate are

____________________
1
Aristotle NE 1152a20-1.
2
Romei ( 1597: 78); Blandy ( 1581: fo. 13), cited by Kelso ( 1911: 92).

-72-

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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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