Provocation: The Ongoing Subservience of Principle to Tradition

Abstract

The defence of provocation has been highly criticised. Most commentators argue that the defence is misguided. There does not appear to be any community pressure to preserve the defence. Despite this, legislatures are reluctant to abolish provocation as a partial defence to murder. This article examines the underlying rationale for the defence. It concludes that the defence is founded on a flawed assumption about human nature—that people are captive to some of their emotional states. It is also argued that the convoluted and confusing (if not confused) test for provocation is evidence of the unsound nature of the defence—it is simply a case of not being able to develop a feasible (and candid) principle for a doctrine that is devoid of a sound justification.