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Vol 21 No 11 Nov/Dec 2016

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Criminal Responsibility and Partial Excuses

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George MousourakisT.C. Beirne School of Law, University of Queensland, Australia

ISBN13: 9781855219434
ISBN: 1855219433
Published: October 1999
Publisher: Ashgate Publishing Ltd
Format: Hardback
Price: Out of print



This is an examination of the problems of criminal liability through an analysis of provocation and related criminal defences. It begins by identifying fundamental questions about the function of partial defences in the criminal law as they emerge from a discussion of leading cases and statutory provisions and in the work of criminal law theorists. The relation between provocation and criminal liability is then subjected to theoretical scrutiny, with particular emphasis on the moral distinction between justification and excuse, and the implications of different theoretical approaches to the defence are examined in a number of related issues. These include the role and limitations of the objective - or ""reasonable person"" - test, the principle of proportionality, the problem of impaired volition and the possible connection between provocation and other defences, especially self-defence and diminished responsibility.;Although the analysis focuses on the defence of provocation as it operates in English law, the perspective to other legal systems which are included in the work add an important comparative perspective to the discussion of the issues.

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Subjects:
Criminal Law
Contents:
Part 1 Introduction to the theory of justification and excuse: distinguishing between justifications and excuses; justification and excuse in common law jurisprudence; justification and excuse in German criminal law theory; the theory of justification and excuse as a basis for the classification of criminal law defences; excuse, justification and the reasonable person.
Part 2 Excusing conditions and criminal liability: criminal responsibility and moral character; the motivational theory - a utilitarian approach to the character conception of criminal responsibility; choice, fairness and criminal responsibility - H.L.A. Hart's theory; homicide, provocation and culpability: murder, manslaughter and the origins of the provocation defence; provocation as a partial defence to murder; the requirement of loss of self-control; the objective test in provocation; proportionality and the reasonable person; a comment on the interrelationship between the subjective and the objective questions in provocation; the problem of self-induced provocation.
Part 4 provocation as a partial excuse: excuse, justification and the rationale of the provocation defence; the justificatory element in provocation - a closer look; further criticisms of the partial justification theory; the excusative element in provocation; Aristotle on Akrasia, loss of self-control and responsiblity; loss of self-control as a basis for excusing; provocation and loss of self-control - a double test in law?.
part 5 Cumulative provocation and diminished responsibility: the problem of cumulative provocation; in search of the rationale of excusing in cumulative provocation cases; diminished responsibility; pleading provocation and diminished responsibility together.
Part 6 Self-defence, provocation and mistake of fact: self-defence and criminal liability; self-defence and excusing conditions; excusing the use of excessive force in self-defence.