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A Hardship Defence?

Document Cited in Related
Vincent
AuthorAlan Norrie
DOI10.1177/a010363
Published date01 December 1999
Date01 December 1999
Subject MatterArticles
/tmp/tmp-17GvmD3V0uUeOi/input 07 Norrie (jl/d) 28/10/99 2:02 pm Page 569
DIALOGUE AND DEBATE
A HARDSHIP DEFENCE?
A key issue in criminal justice theory concerns the ability of legal categories
to reflect the social context of the individual agent in determining his or her
culpability. Barbara Hudson has been in the forefront of those who have
argued for an extension of legal defences to include the possibility of a hard-
ship defence. Such a defence would take into account the particular circum-
stances, of poverty or homelessness, that an accused might experience in
order to mitigate or excuse from punishment. In the following discussion,
Neil Hutton takes issue with Hudson’s approach arguing that the law’s idea
of an abstract and formal responsible subject excludes the possibility of estab-
lishing such a defence. There are clear limits to the ability of law to reflect
such issues because of its self-definition as a formal, apolitical means of regu-
lation. Hudson’s approach will threaten what Stanley Fish calls law’s wish to
have a formal existence, and is therefore unlikely to succeed, while deflecting
attention from the political processes that need to be engaged with to meet
the social problems underlying crime.
In response, Hudson clarifies what she sees as misinterpretations of her
position. She distinguishes matters of responsibility and culpability, and
argues that her approach does not involve ‘group, in advance exemptions’
from blame. Acknowledging that the desert model she endorses will find a
hardship defence problematic, she nonetheless believes that a more practical
approach to sentencing remains possible. Such an approach should distin-
guish between a variety of degrees of ‘freedom’ which would include com-
pulsion, coercion, causation and freedom. If the provocation defence can be
extended to include the position of the battered woman who kills, why
should not other contextual factors which produce crime...

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