Preface to the second edition

Summary

It is eight years since the first edition of this book was published. Where relevant, I have sought to update the argument with new case and statute law. I have also developed the analysis, especially in Chapter 3, where a closer link between the two main sections, on motive and intention and indirect intention, is established. There, I have sought to bring out the conflict between ‘factual and cognitivist’ approaches to intention on the one hand and ‘morally substantive’ approaches on the other. This seems to me to involve a conflict central to criminal law, as is evidenced by its repetition in many areas. It is paralleled in the law of recklessness (Chapter 4), in the law of strict liability (Chapter 5) and in the law of acts (Chapter 6). Its existence spills over into defences like necessity and duress (Chapter 8) and the principles of sentencing (Chapter 10). Elsewhere, I have argued that it also underlies acute problems in the law of provocation (Norrie, 2001).Recognising the problem helps explain tensions in the law between formalism and informalism (below, pp 53–7), and many logical inconsistencies and contradictions with which criminal lawyers grapple.

The idea that the general principles of criminal law might be founded on conflicts or contradictions seems hard to grasp. It runs up against the assumption that arguments of underlying principle should resolve problems by finding a better, or even a right, solution. Analyses of the moral significance of motive, or generally of a morally substantive approach, to formulating intention are assumed to lead directly to proposals for legal reform (see eg Clarkson and Keating, 2010, 148; Horder, 2000; Smith, 2001, 402). My argument is that such analyses are indeed relevant to the law, but are at the same time repelled by its structural tendency to deny moral substance through its general principles. The law has a complex dilemmatic structure involving inclusion and exclusion of the morally substantive within an overall framework based on the psychologically factual and cognitive.