Taking the Heat out of Provocation

Abstract:     
Provocation's past shows it to be a defence grounded in the concept of excessive defence. The quality of the defendant's reasons for killing - the 'proportionality' of his conduct - formed a vital and probably a free-standing ground of mitigation. Anger was introduced only where proportionality did not itself afford sufficient ground for defence, although as society came later to disapprove private force so emotional disturbance began to play a more and more central role. The importance of anger has nevertheless been widely misunderstood. Far from interfering with 'authorship' of actions, it rather modifies perspective and so helps to explain how the defendant could have viewed a wholly inappropriate act of violence as broadly proportionate. It is because scholars have largely ignored anger's impact upon reasoning, presenting it instead as a fundamentally irrational force, that modern interpretations of the defence obscure so much of its moral detail.

Accepted Paper Series