ABSTRACT
I am now going to undertake the gear change I described at the beginning of this chapter. I am going temporarily to leave the universal and the particular and proceed to general problems of the criminal law today, beginning with the prosaic and somewhat improbable case of the reasonable glue sniffer. My argument will be that the problems associated with this character stem from the dominance of the orthodox subjectivist standpoint in this area of the law. Analysing provocation in some detail permits us to see how orthodox subjectivism works, and how its failures invoke a need for a morally substantivist response. From this platform, I will then describe more generally the conflict between orthodox subjectivism and moral substantivism as two different theoretical approaches in the law. These are the two main themes of this section. I will then return in a concluding section to the theme of the universal and the particular, linking it to the clash between formalism and substantivism in the law. In that section, I will bring together my accounts of the plight of the humanitarian judge and of Kant and Hegel with the problems of criminal law theory today. It is however now to the law’s more immediate problems that I turn.
