n Acta Juridica - The tension between legal theory and policy considerations in the general principles of criminal law : general principles of criminal liability and specific offences

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



Law is the expression of an artificial logic, and this is particularly evident in the field of substantive criminal law. Rules of law, and particularly those relating to criminal law, seldom, if ever, consist entirely of a purely logical application of a premise. There is always a tension between two forces: namely, first, abstract theory, adherence to legal dogma or systematic reasoning; and, secondly, the concrete or practical demands of social reality, pragmatism or policy considerations.

This tension is largely also a tension between subjectivism and objectivism. By 'subjectivism' is meant the approach to criminal liability which places the emphasis on the subjective considerations pertaining to the individual offender, and by 'objectivism' the approach which emphasises the expectation of society that the conduct of individuals should conform to certain basic standards, in order to ensure that society operates peacefully and that justice between individuals or between an individual and the state is upheld.
The purpose of this chapter is to consider some of the most important points of tension between legal theory and policy considerations within the framework of the general principles of South African criminal law. Most topics deal with aspects of the culpability element, because it is in this element of liability that the debate between subjectivism and objectivism is particularly evident. Subjectivism often flows from the dictates of criminal-law theory, and objectivism often, if not mostly, from policy considerations. The tension between subjectivism and objectivism is particularly evident in the rules relating to the defence of provocation. The recent judgment of the Supreme Court of Appeal in highlights this tension. Later in this chapter this decision will come under close scrutiny.
Up to around 1950, subjective considerations pertaining to criminal liability played a subordinate role in the construction of criminal liability in South Africa. The subjective test for intention only developed in the course of the 1950s. From about this period it became clear that the courts regarded the test for determining intention to be purely subjective: in murder cases, for example, the question was no longer whether a reasonable person in the position of the accused would have foreseen that the act might lead to the victim's death, but whether the particular accused, in the light of all his personal characteristics such as intelligence or lack thereof, degree of intoxication, any possible degree to which he might have been provoked, his age and sex, had in fact appreciated the possibility that death might ensue.

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