PROVOCATION: PARTIAL JUSTIFICATION OR PARTIAL EXCUSE?
| Date | 01 July 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01767.x |
| Author | Joshua Dressler |
| Published date | 01 July 1988 |
PROVOCATION: PARTIAL JUSTIFICATION
OR
PARTIAL EXCUSE?
I. INTRODUCTION
WHY is a person who intentionally kills a provoker guilty only of
manslaughter rather than murder? What is the theoretical basis for
the defense
of
provocation? Three decades ago,
J.
L.
Austin asked
the question this way:
“Is
[the provoker] partially responsible because he roused a
violent impulse or passion in me,
so
that it wasn’t truly or
merely me actin ‘of my own accord’ (excuse)? Or is it rather
(justification)
’,?’
that, he having
%
one me such injury,
I
was entitled to retaliate
Put in somewhat different terms, Austin’s question comes down
to this: Does the provocation plea in a criminal homicide
prosecution function as a partial
excuse,
based on the actor’s
passion and subsequent loss of self-control, or as a partial
justification,
based on the wrongful conduct of the provoker?
In a recent article: Finbarr McAuley claimed that provocation
functions as a partial justification rather than as a partial excuse for
a homicide. Although he acknowledges that the defense is a
concession to human weakness, he warns that “it would be a
mistake to assume that the defence can be justified on these
grounds The “true basis” of the defense, McAuley asserts,
“is
. .
.
the contribution of the victim, in the fact that his wrongful
conduct was the cause of the defendant’s violent o~tburst.”~
Because the killing is in response to the decedent’s wrongful
conduct, “the defence entails a denial that the defendant’s actions
were entirely wrongful in the first place.”’ Thus, whereas excuses
focus on an actor’s internal mechanisms for self-control, the “real
concern [in provocation cases] is with external constraints on the
individual’s powers of self-control.”6
The justificatory nature of the defense, McAuley reports, has
“deep roots” in English common law and among many modern
authorities. The author concedes, however, that the trend in
England and the United States of America is to treat the defense
as an excuse, by focusing less on the decedent’s wrongful conduct
and more on the accused’s lack of self-control. As a result, this
“points to a trend which may eventually lead to the complete
assimilation of the plea of provocation with the defence of
~ ~ ~
Austin, “A Plea for Excuses” 57
Proceedings
of
the Aristotelian Society
(1956), p.3.
*
“Anticipating the Past: The Defence
of
Provocation in Irish
Law”
50
M.L.R.
133
Ibid.,
p.136.
Ibid.,
p.137.
Ibid.,
p.139.
Ibid.,
p.137.
(1987).
467
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