Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Defences

Posted: 23 Mar 2006

See all articles by Benjamin L. Berger

Benjamin L. Berger

York University - Osgoode Hall Law School


In this perspective piece, the author attacks the notion of "moral involuntariness" in the Supreme Court of Canada's judgment in R. v. Ruzic. He asserts that the voluntarist account of criminal liability is purely descriptive. Through the embrace of a mechanistic understanding of human agency, it forestalls judgment and veils the normative foundation of criminal law. The author asserts the need for a more normative approach, one which seeks to evaluate the moral blameworthiness of an act.

In the case of duress, the author suggests that it is not enough to simply state that a person's will is constrained because he or she is acting under the influence of emotion. An evaluative account of emotions would suggest that emotions involve thought on the part of the actor, and that emotions can be mistaken. Therefore, the moral bases of emotions can and should be evaluated. The law could have considerable conservative inertia under a legal regime which allowed certain attitudes to go unexamined. For instance, the sources of a particular "emotional" reaction might be rooted in a subordinating, retrograde vision of society that placed a low value on certain classes of persons. Hence, the voluntarist account may allow morally suspect social norms and their regressive effects to persist in the criminal law. Through these and other lines of inquiry, the author leads us to question some of the underpinnings of criminal law thinking, and calls for the reintroduction of meaningful and open judgment into the law of criminal defences.

Keywords: Criminal Law, Legal Theory, Defences, Emotion, Duress, Canada

JEL Classification: K19

Suggested Citation

Berger, Benjamin L., Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Defences. McGill Law Journal, Vol. 31, p. 3, 2006. Available at SSRN: https://ssrn.com/abstract=889713

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

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