n Acta Juridica - A provocative response to subjectivity in the criminal law : general principles of criminal liability and specific offences

Volume 2003, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



The criminal law is riddled with numerous value-laden judgements: distinctions between the extent of criminal liability attaching to acts rather than omissions; between the factual and the legal chain linking conduct and consequence; between the criminal results of prohibited acts perpetrated under pathological, as opposed to non-pathological, influences; between criminality of intentional as opposed to negligent conduct; between the degree of liability of perpetrators and accessories; and between completed and inchoate offences. Value-laden judgements implicit in these decisions leave inherent scope for discretion and discretion, of course, permits an essential balancing of interests.

Tension between descriptive and normative rules in the criminal law is no more apparent than in the attitude of the courts to the predicament of a killing that was provoked. Should the law even countenance provocation as a defence to criminal liability, as opposed to recognising that provocation could serve to mitigate the severity of sentence? Should the law adopt a middle course by acknowledging some limited hybrid form of defence whereby conduct, which would otherwise have been sufficient to constitute full-blown criminal conduct, might be 'partially excused', if perpetrated under severe provocation? Should the law give the defence its fullest possible legal relevance by concluding that provocation, of sufficient degree, could completely negate criminal liability? If provocation raises an issue of criminal capacity, then is this capacity judged entirely subjectively or is there an objective, normative dimension to the capacity inquiry?

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