The Poisoned Apple of Malice

Griffith Law Review, vol. 22, no. 1, pp. 150-179, July 2013

30 Pages Posted: 11 Dec 2015

See all articles by Penny Crofts

Penny Crofts

University of Technology Sydney, Faculty of Law

Date Written: July 1, 2013

Abstract

Contemporary criminal law tends to regard malice through the lens of act, intention and consequence. I argue that this modern reading of malice through contemporary patterns of blameworthiness is a misreading, and loses alternative (legal) ways of organising wickedness. Historical accounts of malice can and should be regarded as a (legal) resource by which to critique and enrich modern accounts of blameworthiness. To this end, I explore the construction of malice as a cogent, resonant concept of legal wickedness by treatise writers in the sixteenth to eighteenth centuries. Treatise writers aimed to ensure that malice was sufficiently broad and malleable so that wickedness would not escape the law. Saunders’ case was integral to the construction of malice, and it was used by treatise writers to claim and demonstrate the malleability of malice. Saunders had malice because he caused the death of a subject of the Queen, with premeditation and through the uncanny act of poisoning. The slippage across modern patterns of blameworthiness should not be regarded as a failure to settle upon a pure definition of malice, but as integral to the function of malice to persuade that wickedness would not escape the law. Treatise writers also drew upon Saunders’ case to express and excite fear and repugnance of wickedness and included an emotional account of wickedness. The poisoned apple provided an image to assist treatise writers to develop and clarify malice. I conclude by arguing that Saunders’ case also highlighted the limits of law, its shaky foundations and the contingency of the construction of malice.

Keywords: criminal law, malice, wickedness

Suggested Citation

Crofts, Penny, The Poisoned Apple of Malice (July 1, 2013). Griffith Law Review, vol. 22, no. 1, pp. 150-179, July 2013, Available at SSRN: https://ssrn.com/abstract=2701595

Penny Crofts (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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