Provocation and Responsibility

By Jeremy Horder | Go to book overview

8
Excusing Action in Anger

Man, because he has only one life to live, cannot conduct experiments to test whether to follow his passions or not.1

As I said at the beginning of Chapter 6, the defence of provocation is an excuse, although it involves significant elements of moral justification that defendants must satisfy in order to be successful in their plea. Were the defence of provocation based on moral justification alone, rather than on excuse, the doctrine could in principle be concerned with the mitigation of or the provision of a complete defence for retaliation taken out of coldblooded revenge. The doctrine of provocation is not, though, concerned to reduce from murder to manslaughter or to provide a complete defence for killings in cold-blooded revenge, even when it could plausibly be claimed that reasonable people might have done likewise.2

The excusing element in provocation cases is focused on the fact that defendants only did what they did in anger: in outrage, or following a loss of self-control. What is it about acting in anger that enables provoked defendants to ground their claims to mitigation in excuse? This requires reflection not only on the nature of anger but on the nature of an excusing condition. We have to decide what we think makes acting in anger different from acting in cold blood; but we also have to decide what we think excusing conditions are, such that we can say retaliation in anger falls in principle within the scope of such conditions in a way vengeance taken in cold blood does not. As we will see, the different conceptions of anger that I have isolated do not necessarily fall within the same kind of excusing condition. The defence of provocation is commonly described as a 'compassion to human infirmity', but courts and commentators have been too quick to distort the defence into intelligibility within this one kind of excusing condition alone.

____________________
1
Milan Kundera, The Unbearable Lightness of Being ( 1985), 34.
2
See e.g. R. v. Ibrams ( 1981) 74 Cr. App. Rep. 154. See also s. 4 below. McAuley ( 1991) would abolish the need for any element of excuse in pleading provocation, and thus license mitigation for cold-blooded revenge killings if there were sufficient moral justification. He does not, however, explain why we should attribute so much significance in point of mitigation to the fact that a killing was a product of a decision to administer retribution for wrongdoing personally.

-156-

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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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