From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer
| Date | 01 July 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00394 |
| Published date | 01 July 2002 |
From Criminal Law to Legal Theory: The Mysterious
Case of the Reasonable Glue Sniffer
Alan Norrie*
The modern idea of criminal justice is organised around a series of antinomies
which include the formal and the substantive, the universal and the particular, the
individual and the social. This paper examines the place of these antinomies in
four different but connected settings: the plight of the humane judge, the classical
enlightenment theory of retributive punishment, the judgment of provoked killing,
and the critique of orthodox subjectivism in the Anglo-American law. The play of
the universal and the particular and the formal and substantive within law reflects
and embodies the underlying antinomy of the individual and the social – even
where it does not mention it.
The qualitative moment is preserved in all quantification, as the substrate of that
which is to be quantified.1
Criminal law: problems and approaches
Criminal law theorists live in times that could be described, relatively speaking, as
‘interesting’. At the core of modern argument is an ongoing conflict, explicit or
implicit, between the dominant ‘orthodox subjectivist’ tradition of the textbooks
and law, and a host of critical perspectives which can be broadly described as
‘morally contextual’ or ‘substantive’.2The dominant tradition relies upon a model
of individual responsibility resting on psychological traits which reveal a person to
be in control of her acts (intention, foresight, voluntariness, rationality). The
critical opposition insists that the moral context or substance, for example, of an
intention is as important if not more so in gauging responsibility.3Thus, under the
law of murder the contract and the mercy killer may both be equally responsible,
both possessing the intention to kill, but the contextualist would say there is a
world of moral difference between the two which the law ought to reflect. This
essay will try to highlight and explain the significance of this conflict in the
criminal law. My immediate target will be one consequence of it, the ‘reasonable
glue sniffer’ in the law of provocation,4but I will move from this discussion to the
ßThe Modern Law Review Limited 2002 (MLR 65:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.538
*School of Law, King’s College London. Text of an inaugural lecture to the Edmund-Davies Chair of
Criminal Law and Criminal Justice at King’s College London, given 29 October 2001. I have omitted some
of the more personal aspects of the lecture, and added a concluding paragraph. Otherwise, I have sought to
retain the broad brush directness of the original lecture style. Thanks are due to the anonymous referees of
the paper for pointing out areas where further detail, correction or clarification was required.
1 T.W. Adorno, Negative Dialectics (London: Routledge, 1973) 43.
2 For general discussion, see A. Duff, Intention, Agency and Criminal Liability (Oxford: Blackwell,
1990); I. Dennis, ‘The Critical Condition of Criminal Law’ (1997) Current Legal Problems 50, 213; J.
Gardner, ‘On the General Part of the Criminal Law’ in A. Duff, Philosophy and the Criminal Law
(Cambridge: Cambridge University Press, 1998); A. Norrie, Punishment, Responsibility and Justice
(Oxford: OUP, 2000).
3 A. Norrie, Crime, Reason and History 2nd ed (London: Weidenfeld & Nicolson, 2001) ch3.
4 A. Norrie, ‘The Structure of Provocation’ (2001) Current Legal Problems, 307. For other recent
commentary on the English law, see J. Gardner and T. Macklem, ‘Compassion Without Respect?
Nine Fallacies in RvSmith’ [2001] CrimLR 623; and ‘Provocation and Pluralism’ (2001) Modern
Law Review 64, 815.
more general one about the conflict between ‘orthodox subjectivism’ and ‘moral
contextualism’ in the law.
As regards the law of provocation, it is in a bad state at present after a whole
string of Court of Appeal and House of Lords decisions. In these cases, the courts
wrestle with precedent, but they also engage with the underlying moral problems
reflected in legal concepts. The basic problem is how to establish a general
standard for judging provocation while attending to the individual particularity of
the accused. Hence the idea of the ‘reasonable glue sniffer’,5although I could have
spoken of the ‘reasonable immature person’,6the ‘reasonable obsessive’,7or even,
if the case of an Australian stalker were transposed to this country, the ‘reasonable
erotomaniac’,8an oxymoron if ever there was one.
Criminal law antinomies
From this brief discussion, it can be surmised that questions in legal and moral
theory are not irrelevant to the law, but part of it. My own view is that criminal law
is as much a moral as a technical legal business, and criminal lawyers cannot evade
this conclusion. If they do, the moral issues have a habit of biting back, and this is
often seen in legal confusions going to the law’s very heart. In the present or
immediate past, the law has entertained at least three different and conflicting
meanings of intention9and four of recklessness.10 This is an unsatisfactory state of
affairs, and I will argue that the underlying problem is that criminal law seeks to be
a set of technical legal rules and also a means in some important, but not
necessarily obvious, moral sense of doing justice.
There are then moral problems within the criminal law, and they relate to the
idea of doing individual justice. But any argument about what is ‘internal’ to the
criminal law must also reckon with what lies seemingly outside it. Here I come to
one of the things at the core of my paper, which is the relationship between
individual justice within the criminal law and social justice, which is seen as lying
beyond it. My argument will be that what lawyers essentially think of as two
distinct and separable domains and sets of questions are not ultimately separable at
all. The problems which dog the criminal law can be traced finally to a false but
primal separation within the law between individual and social justice, such that
the latter is taken to involve extraneous issues. My large, and not necessarily
obvious, claim is that it is this ultimately unsustainable separation between two
concepts of justice which constitutes the deep structure underlying the problems of
provocation, recklessness and intention, and which informs the unsatisfactory
intellectual split between the orthodox subjectivists and the moral contextualists
described above. It is important to note that I do not say that questions of individual
5RvMorhall [1995] 3 All ER 658.
6RvHumphreys [1995] 4 All ER 1008.
7RvDryden [1995] 4 All ER 987.
8Stingel vR(1990) 171 CLR 312. See discussion below, at p 548.
9 Intention as purpose (RvSteane [1947] 1 All ER 813), intention as purpose plus foresight of virtually
formulated the Woollin approach, it also refers favourably to Steane, and opens the door to the Hyam-
1 WLR 1025. Woollin arguably has not entirely shut the door on the Hyam approach (see A. Norrie,
‘After Woollin’ [1999] Crim LR 532), which is independently endorsed in the case of the accessory to
murder (Powell and Daniels; English [1999] AC 1). For general discussion of motive and the law of
intention, see n 3 above.
July 2002] From Criminal Law to Legal Theory
ßThe Modern Law Review Limited 2002 539
To continue reading
Request your trial