This study uses an investigation of comparative criminal law as a basis for evaluating the relationship between reason and norms of behavior in society. I argue that an examination of the legal treatment of “crimes of passion” points to the need to reconsider the role and constitution of reason and its relationship to virtue in law and politics. Most legal systems recognize crimes of passion, wherein criminal responsibility is mitigated because the perpetrator was in the grip of a strong emotion—in other words, not in his or her right mind. The legal concept of passion is, therefore, society's formal recognition of the limits of reason as a basis for social behavior. Passion in the law is of particular interest to scholars of gender because it frequently operates to defend men who have killed women who provoked them by transgressing gender role norms, such as submissiveness.

Law provides an important, and enforceable, demarcation between that which is criminal and that which is virtuous or at least acceptable. Thus, where the law makes exceptions to criminal standards on the basis of absence of reason, it points to an unexpected complexity in the seemingly straightforward relationship between reason and virtue that undergirds much of the Western political theory tradition. Feminist political theory and legal scholarship have made a well-known case that reason in law and in politics is not neutral but, rather, reflects dominant social interests and values.Footnote ¹ Much less attention has been given to the study of passion as reason's recognized opposite. It might be expected that since reason in law privileges a certain set of interests, the law's recognition and partial toleration of passion, as reason's opposite, would privilege, if to a lesser degree, other interests. But this is not the case. Passion as a mitigation in law operates only in regard to certain acts and actors, as will be demonstrated in the comparative law section of this article. In effect, although passion is reason's opposite, it reflects the same values in law. This is because passion, like reason, is not neutral, but rather the avatar of dominant social interests. The connection between reason and virtue is both made more apparent and called into question by a consideration of the role of passion in law.

This article begins with an overview, necessarily brief, of some foundational political philosophy contributions that have shaped our historical and contemporary concepts of reason, passion, and law. The next section examines legal treatments of provocation in homicide cases in order to demonstrate the relationship between social mores, particularly regarding gender, and legal principles as they are put into practice. The third section provides examples of crime-of-passion provisions in several legal systems and then turns to an analysis of excuse and justification in the legal treatment of such crimes.Footnote ²

REASON AND THE LAW

When Aristotle spoke of reason and passion in law, he was advocating a particular understanding of law as a means for ordering society. Like Plato, Aristotle held that the true purpose of politics is to allow us to live good lives (both individually and socially), and that good lives are those conforming as nearly as possible to the teachings of reason, rather than the vagaries of the human passions. Passion is an unavoidable element of humanity, but a problematic one; “whereas the law is passionless, passion must ever sway the heart of man,” and when people are “overcome by anger or by some other passion,” their judgment becomes perverted (Politics 3, XV).

Augustine took a somewhat happier view of human passions, holding that our emotions can even help lead us to virtue—when they are in the service of the reasoning mind. Following earlier thinkers, he distinguishes between will and desire, the former a product of reason and the latter of feelings. Surely we all experience emotions like fear and joy, but “the good feel these emotions in a good way, the bad feel them in a bad way, just as an act of will may be rightly or wrongly directed” (Augustine [5th century] 1984, 560). It is difficult to make this view of passion consonant with the modern legal treatment of crimes of passion, in which violence that would otherwise be condemnable is partially excused: Following Aristotle and Augustine, one finds no basis for excusing passions that lead to unvirtuous actions. Passion in law, however, is founded upon the notion, seen in a great deal of political philosophy, that reason is not the whole of human nature; emotions also play a role in governing our behavior. The law's assessment of the virtue or criminality of the passion-driven behavior then becomes enmeshed in shared social norms as much as with philosophical principles, as will be explained. This begins to point us toward the complexities of reason, passion, and virtue in the law.

The dangers presented by badly governed passions mean that we need law, rightly conceived and practiced, to save us from ourselves, but even the law requires a human element. Even codified laws, so desirable in their character as dispassionate documents, do not conform well to the circumstances of every case, and so they must be supplemented by human judges. This provides an entry point not only for human failures of rationality but also for Augustinian compassion (Augustine, 349), the use of emotion to pursue a good end to which objective reason alone would not lead us. This is seen in the concept of equity, the idea that to do justice, the objective and rigid rules of the law must sometimes be adapted to circumstance; it is “the justice of the individual case” and implies “a grant of discretionary power to the judge” (Merryman and Pérez-Perdomo, Reference Merryman and Pérez-Perdomo2007, 49). In the civil law tradition, the notion of equity is limited in preference to concrete certainties of law, and thus “carefully circumscribed” in statutes granting limited judicial discretion (p. 50). In the common law tradition, equity has provided a set of legal principles that can mitigate effects of the law considered inappropriately harsh.Footnote ³ In both traditions, obviously, there is ample scope for the introduction of bias, emotion, or other influences not based on reason.

Passion is thus inevitably introduced into the life of the law, but Artistotle warns us to arrange this human role in the law to minimize, rather than to embrace, the human defect of passion. Even his endorsement of equity as a departure from legal rules is meant to expand the judge's ability to provide justice, rather than to reduce a reliance on reason in the pursuit of that justice (see Ethics; Beever Reference Beever2004). If the law is to make us and our societies good—that is, if the law is truly to do justice to us—it must reject passion as completely as possible in favor of reason.

The view that law is the embodiment of reason remained well-established in Western history and philosophy long after the demise of Aristotle.Footnote ⁴ This view of law, the foundation of natural law theory, has shaped the development of both legal and political principles, from the elements of crime to the requisites of citizenship. The “reasonable person” standard, the age of legal majority, the doctrine of coverture—all these aspects of law depend on an assessment of an individual's ability, and even duty, to reason.

Of course, natural law is not the only, nor even the dominant, philosophy of law in the West or anywhere else today, having lost ground to the positivist view that law is the embodiment not of reason but of power. Law is, in this philosophy, the ability of the state (or other body) to require obedience to its pronouncements; “whatever the legislator posits as law, no more and no less, is law; one cannot go behind the command of the legislator to question its reasonableness” (MacGuigan Reference MacGuigan1961, 1).

Acres of scholarly works demonstrate, however, that even positivists can “go behind the command of the legislator,” searching if not for divine reason then at least for that kind of human reason that makes possible objectivity and consistency (for the rule of law) and evenhandedness (for equality before the law).Footnote ⁵ This article cannot take up the larger questions of the natural law tradition and the basis of the rule of law; it begins from an observation that, whatever one thinks about natural versus positive law, reason has remained important in the operation and constitution of law.

THE DIFFERENCE BETWEEN MURDER AND MANSLAUGHTER: THE IMPLICATIONS OF PROVOCATION

In assessing the importance of passion provisions, it is helpful to look at the way such provisions came into the law, in order to assess purposes they were created to serve. In the common law tradition, homicide is divided into two chief categories: murder and manslaughter. In both cases, the law takes note of the actus reus, or proscribed behavior, and the mens rea, or state of mind connected to the actus reus. The actus reus of murder is causing the death of a human being, but this element alone is insufficient to establish the crime of murder. Without the mens rea of intention to kill (or, in English law, to cause grievous bodily harm), the killing is not a murder. Manslaughter is a lower degree of homicide, distinguished from murder in two possible ways. The first category, voluntary manslaughter, is identical to murder in terms of the actus reus and the mens rea, but is distinguished by special circumstances such as provocation or diminished responsibility.Footnote ¹⁰ For example, a manslaughter charge could be brought against a man for killing another after “some act … done by the dead man to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind” (Justice Devlin, Regina v. Duffy [1949]). Involuntary manslaughter, by contrast, lacks the mens rea element of intention to kill the victim, and relies instead on killing by negligence or during the commission of another criminal act (such as drunk driving).

The consideration of provocation as a mitigating element in homicide has deep roots in the common law. Blackstone's eighteenth-century commentaries describe manslaughter as “the unlawful killing of another, without malice either express or implied: which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act” (Blackstone Reference Blackstone1765–69, Book 4 Chap. 14). His account distinguishes manslaughter both from justifiable homicide and from murder: “Manslaughter therefore on a sudden provocation differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other no necessity at all, being only a sudden act of revenge” (p. 192).

Note that the act of revenge must be sudden, rather than planned, lest it count as murder:

Blackstone explains the existence of the manslaughter distinction by noting that “the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt.” His examples of manslaughter include a sudden fight between two men in which one kills the other, and cases where “a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor.” A husband's discovery of his wife in an adulterous act would also be grounds for manslaughter, if the husband kills the other man immediately. Blackstone draws a careful distinction here, pointing out that other systems, such as Roman and Gothic laws, treated such killings as justifiable homicide; in the English common law, however, they were considered to merit punishment and were thus classified as voluntary manslaughter. He hastens to add that such acts are, however, the “lowest degree” of manslaughter, because “there could not be a greater provocation.” While English law had some sympathy for homicidal cuckolds, it recognized such killings as revenge rather than self-defense.

The final element that must be stressed is that the concept of provocation, as treated by Blackstone, was important not in justifying a violent response but only insofar as it tended to explain the violent response in a way that partially excused it. In effect, the common law recognized certain provocations as circumstances in which a rational person would lose control of reason and act instead in the heat of passion. The passion was a necessary element in reducing murder to manslaughter; if the vengeful husband, for example, did not act immediately upon discovering the adultery, but instead went away to plot the murder of his wife's lover, the law extended no tolerance for the subsequent homicide. Clearly it is the loss of reason, rather than the justness of revenge, that is the operative element in the law here.

The English, and later the American and other courts in the Anglo-colonial legal world, retained for centuries this particular provision offering a partial excuse (not, in Blackstone's view, a justification) for homicide in circumstances of adultery, and in many places the provision still operates. It is instructive to compare it to related provisions in civil law countries and in countries, such as those of the Middle East, whose legal systems are pluralist in nature. While the provisions themselves vary, the effect is broadly similar across systems in making special provisions for certain actors (husbands or other relatives) who kill women who have committed adultery or other forbidden sexual behavior. This effect is particularly interesting when one notes that the original doctrine in common law, and statutory provisions in civil law systems, was oriented toward the homicide of the adulterous wife's lover, not the wife herself. Furthermore, the practice, if not the text, of such provisions has tended to blur the excuse/justification distinction (discussed later), as well as the passion/premeditation distinction.

THE REASONABLE MAN LOSES CONTROL: STANDARDS FOR EVALUATING PROVOCATION

A defense of crime of passion requires not only the killer to have acted out of passionate rage but also this loss of rational control to have been provoked by the victim, as noted earlier. The standard used in common law systems to evaluate this element of a crime of passion has come to be called the “reasonable man” standard.Footnote ¹² This standard arose out of a need to evaluate whether the defendant had in fact acted out of rage, because without some evidence on that point, the crime would not be legally distinguishable from murder. At the same time, however, it was necessary to distinguish an actor's rage in response to a provocation from a rage that might simply have been characteristic of that individual, as with the bad-tempered man mentioned previously. Thus, juries were instructed to evaluate whether the provocation offered by the victim “was enough to make a reasonable man lose his self-control,” or similar language. This is an objective standard of reasonableness that provides a single model to be applied similarly in all cases—or at least that was ostensibly the case; inasmuch as jurors were to rely on their own understanding of a reasonable man, the actual standard applied could have varied from jury to jury. The objective standard, however, also suggested, to jurors, defendants, and society generally that a reasonable man had attributes commonly known, that these attributes were the norm for the society, and that only such persons came within the law's mercy when understanding a violent response to provocation was required.

Perhaps inevitably, the reasonable man standard came under fire for its deficiencies in applying equally well to all defendants. In the first place, obviously, not all “men” are men. Originally, the standard was treated as gender neutral and applied to all individuals regardless of sex. This was not the same as actually being a gender-neutral standard, of course, and a common feminist criticism was that the “reasonable man” standard evaluated women on the basis of the norms of masculinity, and thus subjected them to biased and unfavorable assessments in the law (Childers Reference Childers1993; Fiora-Gormally Reference Fiora-Gormally1978; Hubin and Haely Reference Hubin and Haely1999; Welke Reference Welke1994). The use of the reasonable man standard across several areas of law, including most importantly sexual harassment and rape law, revealed sufficient deficiencies that the standard came to be replaced by the “reasonable person” or, in some circumstances such as workplace harassment, the “reasonable woman.”Footnote ¹³

The gender-related issues of the standard of reasonableness are only one example of a trend toward greater subjectivity in evaluating reasonableness. Nigerian courts, for example, have evaluated reasonableness with regard to the provocation rule by taking into account the defendant's “station in life” (Isedonmwen Reference Isedonmwen1988). Similarly, an Indian court considered issues of class and ethnic background in dealing with provocation claims (Yeo Reference Yeo1992). In an Australian case, a Turkish Muslim living in Australia killed his daughter for having a premarital relationship, and then successfully argued that his crime should be treated as manslaughter rather than murder because of the provocation such behavior would constitute to a man of his religion and cultural background.Footnote ¹⁴

This subjectivity is welcomed by some as an improvement, despite its sometimes unfortunate effects, on the grounds that it requires the law to understand the lives of the individuals before it, rather than just the dominant model in society. Subjective standards might also be preferred to objective ones simply because they bring subjectivity out into the open, where it can potentially be criticized, rather than leaving it to the private prejudices of judges and juries.

Even a movement toward more subjective standards of reasonableness, however, does not solve the problem of egalitarianism with regard to reason in the law. One consideration involves the nature of the subjective standard itself. Feminist legal critiques have argued that the reasonable woman “impos[es] a single, uniform standard on a group … whose subordination has been made possible by the attribution to it of uniform, usually condescending, attributes” (Bartlett Reference Bartlett1993, 485). One author pointed out that the new standard might not be an improvement if it became merely a means of applying gender stereotypes, as it would be “counterproductive to replace one caricature with another” (Finley Reference Finley1989, 63–64, cited in Bartlett Reference Bartlett1993). This is true of ethnic and class-based subjectivities as well as gender-based ones.

Efforts to reform standards of reason by making them more subjective have also been criticized for failing to recognize that the problem of the law lies not in its principles or its texts but in its applications. This view holds that rules of provocation and self-defense, as well as standards of reasonableness, were perfectly adequate to fair judicial treatment of defendants, but that judges made frequent reversible errors by not treating such defendants as existing principles required (Maguigan Reference Maguigan1991, 382–87, 457–58, cited in Bartlett). One might also consider the reasonableness of juries as well as defendants; as early as 1900 an author complained that juries, like the rest of the public, were tolerant of crimes of passion, and that “emotional and hysterical acquittals of persons guilty of taking the law into their own hands to avenge their honor are by no means uncommon. The evils of such acquittals, which amount to a glorification of crime, are too obvious to require explanation” (Speranza Reference Speranza1900).Footnote ¹⁵

Whether the problems of evaluating reason lie in the standards or in those applying them, the point is that the law as understood accommodates a differential evaluation of reasonable behavior and its limits, based on the person to whom the reasoning and acting are attributed (and, perhaps less obviously, based on the persons doing the attributing). Whether this evaluation is objective or subjective, it is still likely to be as much a vehicle for applying social prejudices as for applying the (ideally neutral) principles of the law.

THE SOCIAL ASPECTS OF LAW'S ASSESSMENT OF REASON—EXPLAINING THE GENDERED IMPLICATIONS

The law privileges some rationales for violence over others. The law is ostensibly (usually) neutral on its face in this regard, but we know that gender issues arise in the law's application, as discussed previously in terms of the standards of reasonableness. This effect is not just the product of judicial or juror prejudices, however; it is in some ways inherent in the way the law constitutes “reason” as a virtue in human society. In crimes of passion, the actor's violence is justified or excused (fully or partly) by the loss of reason, a loss of reason specifically countenanced by the law on the basis of circumstances and the actor's relationship to the victim. Statutory provisions regarding crimes of passion implicitly communicate that this violence is understandable—a message that judges, juries, and legislators sometimes communicate explicitly.Footnote ¹⁶ These provisions, in texts and in practice, suggest a shared understanding, not of what a reasonable man would do but of what would—and ought to—make a man lose his reason. The abandonment of reason and restraint is evaluated in the perpetrator's favor; the law sympathizes with his state of mind.Footnote ¹⁷

For example, a common argument against hate-crime legislation is that it “criminalizes thought,” or more precisely that it makes a determination about mindset that is invalid because we cannot know what is in someone's mind (Candeub Reference Candeub1994). Or at least we can know it only when it is “clear”—as in “Few would dispute that one who attacks another with a knife intends to kill him” (p. 2115). The problem is, of course, that the interpretation of this scenario does invite dispute: A man running at you with a knife could be an attacker, or he could be a butcher fleeing a wasp. Had you just argued with this man? To use Blackstone's examples, had you slept with his wife or pulled on his nose? Our knowledge of the circumstances lets us evaluate whether an action is an attack, and only then whether an attack carries an intention to kill. The law does not stop with this determination of intention, however; to distinguish between voluntary manslaughter and murder, as described, the law needs to know not only that the assailant intended to kill but also whether this intention was formed under specified conditions of provoked passion.

The distinction between the homicidal man and the spheksophobicFootnote ¹⁸ butcher, like the distinction between the murderer and the manslaughterer, is not only rational but also social, based on cues about our surroundings and the behavior of others. The law, in effect, expects us to know things socially, and because the law serves the purpose (among others) of social order, it is right that it should take social knowledge into account in judging human behavior. The idea that the law should not pretend to know what is in someone's mind is simply disingenuous; it suggests an agnostic objectivity that belies the social nature of law. More importantly, though, it obscures the degree to which law is a product, as well as a regulator, of society and directs us away from a critical examination of the origins and implications of law's principles and provisions.

Critics of hate-crime laws (such as Candeub Reference Candeub1994 or Jacobs and Potter Reference Jacobs and Potter1998) often draw a distinction between intent and motive, holding that the law can evaluate the former (as mens rea) but that the latter is a mystery for specialists of another type—priests, psychologists, and psychics, perhaps, but not prosecutors. The persistence of crime-of-passion provisions, however, shows that the law, in fact, assesses motivation with a great deal of confidence, at least in some circumstances. Such defenses do not go to intention, but rather to motivation exclusively. Moreover, defendants claiming crimes of passion do not necessarily need to show that they were in fact in the grip of an overwhelming rage at the time of the crime; the law in its text and in its actors (judges and juries) takes certain circumstances as known to provoke a loss of rational control. Thus, “determinations about which motivations are good ones or bad ones are deeply inscribed in the law itself” (Steiker Reference Steiker1999, 1865).

This presents an interesting complexity for the role of reason in the law, a complexity that is made apparent by the gender implications of crime-of-passion provisions. The tradition of the law has been to regard women as less in possession of rational faculties in the first place, and yet the law's exceptions regarding loss of rational control have primarily benefited men and almost never women.Footnote ¹⁹ The law is not, therefore, neutral in recognizing that an excess of emotion can disable reason, nor in partially (or, more rarely, fully) excusing violence based on such a loss of reason.

PROPERTY, GENDER, AND PROVOCATION

For an elucidation of the sociolegal understanding of gender and provocation in criminal law, it may be helpful to examine a civil law parallel, the complex relationship of property and gender. One of the most common ways to describe women's historical gender-based disadvantages and injustices is to liken women of a particular era, class, or place (or sometimes all women, throughout history) to property. While sociologically this may not be far off, at least as a description of some times and places, the legal question is a bit thornier.

A useful example of the explicit legal relationship between women and property is the old common law treatment of adultery, or “criminal conversation.” According to Blackstone, adultery is not only a public crime but also a civil injury for which the husband can seek damages. The basis of such claims was usually the husband's loss of his wife's services, but actions also sought damages for alienation of affection and calling into question the legitimacy of offspring. Thus, the husband was recognized to have a property-related interest in his wife (her services in the household and conjugal rights); the wife was not considered by the law to have a corresponding property in her husband's services until the early twentieth century, shortly before actions for criminal conversation were abolished. Therefore, it seems clear that the law regarded a wife as in some degree the property of her husband, and the wrong done by adultery was a property wrong, done to him not by her (a husband being unable to sue his wife for adultery) but by another man who took what belonged to the husband.

This fairly straightforward view of adultery and property, however, is complicated by the common law origins of criminal conversation suits. Korobkin (Reference Korobkin1998) points out that adultery was not described in property terms (as a matter of law) until the thirteenth century, when lawyers invented a legal fiction to allow husbands to seek monetary damages in the civil courts. Criminal proceedings for adultery took place in the ecclesiastical courts, which did not award civil penalties, and the civil courts could deal only with cases involving property damage; thus, adultery became a matter of property as well as morality. Of course, the law does not develop in a tidy institutional vacuum, and the husband's “property” in his wife is well reflected in other social norms as well. It is instructive, however, that legal fictions can contribute to social facts.

Adultery is far from the only example of property-related claims about gender; common law systems have allowed husbands and fathers, respectively, to sue for alienation of affection or seduction, on the grounds that they have a right to the love and the household services of women. Similarly, some Arab legal systems, such as in Lebanon, allow the husband to decide whether or not his wife may seek employment outside the household, on the same grounds. Legal agency in these matters has been assigned exclusively to the husbands, fathers, and accused lovers of women; the women are legally relevant as wives and daughters, not as actors in their own behalf.

Thus, while women themselves have not generally been property as a matter of legal theory and formal law, men have often been granted, by the law as well as by social mores, property in women that they may claim, use, and regulate. Where the law strips women of their agency and grants men enforceable rights over them, the consequent position is at least analogous, and often directly related, to property.

In the context of these legal arrangements, then, the highly gendered treatment of provocation is comprehensible. Men have long been held to have an interest in “their” womenfolk that is not equally reciprocal, and this interest goes beyond property to touch upon honor and social standing as well. Thus, the law seems to have said, the “reasonable man” might well be provoked past the point of reason by an affront from his wife or girlfriend, while she would not experience provocation the same way or with the same consequences. Such are the dangers of a legal system well grounded in its own society; it may reflect that society's dominant values even where those do harm, and the reflection may live on in law after the original image has begun to fade.

EXAMPLES OF CRIME-OF-PASSION PROVISIONS IN VARIOUS SYSTEMS

In 1957, EnglishFootnote ²⁰ law modified the common law of passion defenses, retaining the reasonable man standard but giving juries even greater power to evaluate the provocation and its effect on a “reasonable man” (Dressler Reference Dressler1982, 429).Footnote ²¹ The common law rule regarding crimes of passion is still important, however, particularly in the American legal system. Many states retain it either explicitly or implicitly in their criminal codes (Dressler Reference Dressler1982, 429–32), and the decisions based on this rule have greatly shaped the judicial environment in which crimes are evaluated.

In American law, it is common to find references to the “unwritten law,” which is described as allowing husbands to kill unfaithful wives. This apparently arises largely out of a misconception of the crime of passion in common law. As Blackstone described it, the common law envisioned the killing of an adulterous wife's lover, not the wife herself. The operation of the law, however, has generally led to light penalties for men who kill their adulterous wives; this is likely the effect of sympathetic jurors, who until the mid-twentieth century were almost exclusively male.Footnote ²² Where statutory law in the United States has addressed the issue of homicidal responses to adultery, it has tended to reflect the common law in one way and depart from it in another. Texas, New Mexico, and Utah all had statutes treating a husband's discovery of his wife's adultery as grounds for killing the lover, but not the wife. According to the Texas law, “a homicide is justifiable when committed by the husband upon the person of anyone taken in the act of adultery with the wife; provided the killing take place before the parties to the act of adultery have separated” (Texas Penal Code, 1911, cited in Michigan Law Review, 1923, 594). Georgia effectively had the same rule by judicial interpretation rather than statute, although in the Georgia case, unusually, it applied to wives as well as husbands who discovered adultery (Miccio Reference Miccio2000; Weinstein Reference Weinstein1986). The orientation toward the homicide of the wife's lover is consistent with the old common law rule, but the treatment of the homicide as justifiable is an innovation going well beyond the common law.

Crime-of-passion provisions can be found not only in the common law world but in civil law and other systems as well. In Brazil, for example, it was long the practice that a man who murdered his wife or lover in “legitimate defense of his honor” was excused from any penalty (Inter-American Commission, 1998). This honor-based defense is much like the passion defense in common law in that it was considered to reflect the average man's enraged response to certain inappropriate behavior. These defenses were often used in cases where husbands killed adulterous spouses, but also applied to killings of girlfriends and of wives who had not committed adultery but who had transgressed gender norms by refusing to be subordinate to their husbands. The Brazilian honor defense was predicated upon an understanding of passionate rage that any “normal” man would feel when thus provoked by a woman, but it did not in fact require that the homicide take place in the grip of that rage. In one notorious case, a man who had been kicked out by his girlfriend later shot her to death in the street; he was originally acquitted of homicide charges.Footnote ²³

Unlike the court system in most civil law countries, Brazil's makes use of jury trials, and this factor is one element that explains the success of honor defenses and the difficulty in rooting them out of the legal system. The Supreme Court forbade the use of such defenses in 1991, but ample evidence shows that acquittals in such cases are still the norm, particularly in the interior of the country. Jurors in Brazil as elsewhere are likely to bring their own views to bear in assessing the facts of a case; as provocation is a matter of circumstance rather than law, juries, where they exist, have significant ability to incorporate local norms into such cases.

A number of legal systems' penal codes contain provisions making specific exceptions in homicide cases for men who kill adulterous wives. In Haiti, for example, a statute provides that men who kill adulterous wives or their lovers, upon discovering them in the act of adultery in the conjugal home, are excused from any penalty. Wives who discover husbands in identical circumstances are not excused (U.S. Department of State, 2003).

As in many former colonies, this provision in Haitian law can be traced back to the law of the colonial power, in this case, France. Article 324 of the 1816 French Penal Code exempted from punishment a man who killed his wife upon finding her in the act of adultery in her home. This article was eliminated from French law in 1975, but it persists in the codes of many former colonies.Footnote ²⁴ This historical legacy is part of the basis of a legal phenomenon much commented upon in recent years, the so-called crimes of honor that take place in the Middle East and elsewhere. Honor crimes are not, in the strict legal sense, crimes of passion, just as the French adultery-homicide provision was not the same as the common law provoked-passion provision. However, the two instances of law spring from the same social origin and operate to very similar effect.

“Honor crime” or “honor killing” refers to the killing of a girl or woman by a family member in response to some transgression (actual or perceived) by her of local codes of sexual chastity or obedience. Such killings take place in many societies; popular description links them to Islamic law, although this is a fallacy, and they occur among both Muslims and Christians in the Middle East, as well as in other regions (Warrick Reference Warrick2005).Footnote ²⁵ A number of criminal codes make explicit provision for honor killings as a basis for reduced penalty in homicide cases. A typical example comes from the Jordanian penal code, which offers a complete excuse or a mitigation based on the discovery of a woman's adultery or other sexual misconduct.Footnote ²⁶ Such provisions generally allow the excuse or mitigation in the case of killing or injuring either the woman or her lover. Like the French provision, they make no explicit mention of passionate rage as a consequence of the “provocation” of the victim's behavior. Honor killings could, in principle, take place in cold blood.

Honor-crimes provisions have received a great deal of attention in the last six or seven years, and efforts have been made to reform the codes in which they exist. These reform attempts have met with a surprising (to some observers) degree of resistance, and most statutes remain intact. But while they are certainly important symbolically, honor-killing statutes are much less relevant in the actual operation of the law. This is because it tends to be difficult to meet the circumstances described in the law (for example, catching the couple in the physical act of adultery). Thus, the law does not reflect the common practice, which is to kill girls or women who have had pre- or extramarital sex as evidenced by pregnancy, gossip, confession, or “inappropriate” behavior.

Most such cases are socially understood as honor crimes but prosecuted (when they are prosecuted at all) as crimes of passion. In Jordan, the crime-of-passion statute is used almost exclusively in cases of honor crimes, in preference to the actual honor-crimes statute. While both honor crimes and crimes of passion are legally conceived as responses to provocation by the victim, they differ in whether the provocation must create a loss of rational control in order to excuse (fully or partially) the subsequent homicide. Honor-crime provisions do not explicitly require that the homicide take place immediately upon provocation, nor do they make reference to the killer's state of mind. However, the understanding of such provisions is that they are based on a normal man's response to this particular kind of provocation.

It is interesting that the law's terms do not correspond to social practice in the relevant cases. The use of crime-of-passion provisions is an attempt, often rather sloppy but almost always successful, to benefit simultaneously from the honor-crime provision's removal of passion as an element of the excuse and the provocation rule's lack of specificity regarding the circumstances of the provocation.

The parallels between crimes of passion and honor crimes reveal similar principles and practices across legal systems that are quite different from one another in terms of the sources of law, the legal institutions and processes, and the underlying cultures of the countries.

BLURRING THE DISTINCTION BETWEEN EXCUSE AND JUSTIFICATION: PASSION, HONOR, AND SELF-DEFENSE

Many legal traditions have drawn a distinction between excuses and justifications with regard to homicide. Blackstone points out, for example, that both the old Roman law and English common law (at his time) recognized that killings in self-defense or defense of chastity were justified and thus lawful, not criminal; his logic was that “where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting” (Blackstone Reference Blackstone1765–69, Book 4, Chap. 14). Crimes of passion, by contrast, involved excuses for the act rather than justifications of it; such actions were not lawful, but neither were they deserving of the same punishment as homicides in cold blood.

This distinction has been more or less maintained in most legal systems today, where crime-of-passion provisions are separate from self-defense provisions in criminal codes. Although both types of killing involve a response to provocation, the logic of the two claims is fundamentally different; provoked passion reduces criminal responsibility for a killing, whereas self-defense makes the killing itself not a criminal act. The difference between an excuse and a justification is often described by an example involving rape: If A forces B to rape C, then B's act is excusable (at least in part) but it is not justified. That is, B was incapable (or nearly incapable) of refusing to commit the act, but B's act was not just or lawful.

The difference between excuse and justification has been critically considered in the context of crimes of passion, notably by Dressler (Reference Dressler1988), who points out that the two logics, while distinct in terms of legal principle, have often been confused and intertwined in the application and interpretation of law. While some commentators have pointed to the uses of justificatory elements of provocation in crime-of-passion defenses (McAuley 1987), Dressler (Reference Dressler1988, 480) ultimately argues for the retention of the common-law-excuse approach, which he sees as still dominant in Anglo-American law.

This is an important point in terms of the law's treatment of rationality. As discussed previously, provocation defenses in all of their various forms involve the elements of both loss of reason and wrongful act by the victim; it is easy to see the latter element as forming a partial justification of the crime insofar as it not only explains the loss of reason but also attributes it to wrongdoing on the part of the victim, rather than the perpetrator. A clear example of the relationship between these two elements is found in Jordanian law. Article 98 of the Jordanian Penal Code states that “the committer of a crime who undertakes it in a furious passion produced by a bad [lit. ‘unrightful’] or dangerous act performed by his victim, benefits from a mitigating excuse.” Judicial interpretation has tended to support the view that such homicides are not only excusable but even justified. In a case involving a man who killed his wife after a quarrel in which she threatened him with a knife, the court found that the man was eligible for a reduced penalty on the basis of Article 98, because “the victim's actions violate the traditional and religious beliefs and marriage duties which stipulate that the wife should respect, obey and serve her husband, and thus constituted dangerous actions against her husband.”Footnote ²⁷

There are also a number of examples in American law of how the old common-law passion excuse has evolved into related provisions dealing with adultery-related homicide as justifiable. This was generally the case for male, but not female, perpetrators. The Brazilian “legitimate defense of honor” likewise combines the notion of defense (as justification) with the expected loss of rational control (as explanation) to reduce or remove penalties for men who kill wives or lovers after “provocation.” The judicial treatment of honor crimes in some Middle Eastern countries also suggests this blending of justification and excuse, in that premeditated murders that would not seem to qualify for passion-based defenses are nonetheless excused, with the court focusing on the “bad actions” of the victim rather than the other elements of provocation, the heat of passion and immediate response.

There are some examples of state efforts to reduce the gender-disparate effects of provocation claims, most notably in the Australian state of Victoria. In 2005, the Crimes Act of that state was amended to remove provocation as a defense to homicide. The attorney general described the provocation defense as reminiscent of “the propertied concepts of gender,” and noted that the provocation defense excused men who killed wives who enraged them, but not women who killed husbands after suffering years of abuse.Footnote ²⁸ Under the new law, self-defense but not provocation will be an excuse in homicide.

English law has recently enacted changes to resolve the same disparity addressed in the Victoria law. Because self-defense provisions have been narrowly interpreted as requiring an immediate response to a physical threat, and provocation defenses likewise require action in the heat of passion, battered women who kill husbands who are sleeping, for example, have been tried for murder, while husbands who kill wives in a jealous rage have been charged only with manslaughter. In part as a consequence of media reports of battered wives convicted of murdering their tormentors, English provocation law was “softened” beginning in the 1990s:Footnote ²⁹ Judges are now formally directed to consider, among other factors, “cumulative provocation” over a long period as causing a loss of self-control. These changes were designed to reduce the long-standing leniency toward husbands who kill adulterous wives while also making similar excuse-based defenses available to wives who kill violent spouses.Footnote ³⁰

A second reform in English law goes even further. In 2008, the government announced the end of “crime of passion” defenses in homicide cases. This move, described in the Times as “the most radical overhaul of the murder laws in 50 years,” removes the most common defense used by approximately a hundred men each year who kill current or former partners.Footnote ³¹ This will do away with the sometimes shockingly light sentences handed down for such cases, including one man sentenced to community service and another to probation, both of whom had killed their wives after arguments (Phillips 2007, 95). The law will also now recognize a partial defense of “fear of serious violence,” expected to be used in cases where a victim of domestic violence kills her or his abuser.Footnote ³²

Despite the recent reforms, there is clearly a tendency in many systems to blur the distinction between excuse and justification in cases of provocation. The outcome of this blurring can be either more or less egalitarian in gender terms, as these cases demonstrate, but the fundamental issue of the law's understanding of reason and passion goes unaddressed. Rather than considering the implications of a toleration for violent passion in the law, systems are more likely to reform the applications of passion in response to social change. This is not necessarily a bad thing; the English and Australian legal reforms described here promote gender equality before the law. It is unfortunate, though, that the life of the law does not lead us to reconsider the law's conception of reason and its limits.