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Quantifying desert prior to the rightful condition: towards a theoretical understanding of the provocation defence

Quantifying desert prior to the rightful condition: towards a theoretical understanding of the provocation defence
Quantifying desert prior to the rightful condition: towards a theoretical understanding of the provocation defence
The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.

Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.
Philosophy of Law, Legal Theory, Criminal Law Theory, Provocation
0841-8209
49-82
Da Silva, Michael
05ad649f-8409-4012-8edc-88709b1a3182
Da Silva, Michael
05ad649f-8409-4012-8edc-88709b1a3182

Da Silva, Michael (2015) Quantifying desert prior to the rightful condition: towards a theoretical understanding of the provocation defence. Canadian Journal of Law & Jurisprudence, 26 (1), 49-82. (doi:10.1017/S0841820900005956).

Record type: Article

Abstract

The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.

Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.

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Published date: 20 July 2015
Additional Information: Copyright © Canadian Journal of Law and Jurisprudence 2013
Keywords: Philosophy of Law, Legal Theory, Criminal Law Theory, Provocation

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Local EPrints ID: 469662
URI: http://eprints.soton.ac.uk/id/eprint/469662
ISSN: 0841-8209
PURE UUID: 77d01fe9-5784-4f5e-a7b5-b5ec5f8d401f

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Date deposited: 21 Sep 2022 17:04
Last modified: 21 Sep 2022 17:04

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Author: Michael Da Silva

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