ABSTRACT
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’.1 The dominant tradition relies upon a formal 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 are as important if not more so in gauging responsibility (Norrie, 2001b, Chapter 3). Thus, 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 chapter will try to highlight and explain the significance of this conflict. My immediate target will be one consequence of it, the ‘reasonable glue sniffer’ in the law of provocation (Norrie, 2001a), but the argument then moves from the particular to the more general conflict between ‘orthodox subjectivism’ and ‘moral contextualism’ in the law.
