Provocation and Responsibility

By Jeremy Horder | Go to book overview

6
Justifying Mitigation Morally

it is not easy to determine what is the right way to be angry, and with whom, and on what grounds, and for how long. Indeed, we sometimes praise those who . . . display temper, calling them manly.1

At important points during Chapter 5, I referred to the concepts of 'justification' and 'excuse' in relation to the development of the doctrine of provocation. The next three chapters will be concerned with explaining and exploring the justificatory and excusatory characteristics of the doctrine in much greater depth. In this chapter I will be concerned with explanations that have been given by leading commentators for the key justificatory characteristic of the doctrine (described below), and with the conceptions of anger that underpin those explanations. My own understanding of that key justificatory characteristic involved in the mitigation of murder to manslaughter by way of a provocation plea will be given at the end of the chapter.


1. THE IMPORTANCE OF MORAL JUSTIFICATION

In so far as it is necessary to show that one killed in anger if mitigation of the offence from murder to manslaughter is to be warranted, the defence of provocation is an excuse and not a justification for criminal conduct. The reasons why this is so are explored in Chapter 8. None the less, there has always been a key justificatory element or condition to a plea of provocation, bound up with the excusatory element. It has never been a sufficient, as opposed to a necessary, condition of mitigation that defendants satisfy the excusatory element, by proving simply that they killed in anger.

This justificatory element is the so-called objective condition or evaluative criterion. This makes mitigation dependent on having (in anger) killed in circumstances in which the reasonable person might have done likewise.2

____________________
1
Aristotle NE 1109b14-17.
2
Raising a reasonable doubt as to whether a reasonable person might not have done as the defendant did is a condition of the defendant's acquittal on the grounds of provocation. The evaluative criterion, naturally, is focally concerned with ensuring that only killings in response to grave provocation are deemed worthy of mitigation.

-111-

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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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