Partial Defenses

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Abstract

J.L. Austin is usually credited with having called attention to the existence of different kinds of defenses. His philosophical insights have inspired many legal commentators, especially theorists of criminal law. The contrast between justification and excuse forms the cornerstone of his thought. Austin's most valuable contribution was to identify and explore the similarities and differences between justification and excuse. Yet a very important feature of these defenses as Austin conceived them is typically neglected by most of the scholarship that he inspired. Austin maintained that few excuses get us out of it completely. Clearly, he held the same view about justifications. But most of the subsequent work on justifications and excuses has treated each as complete defenses. A complete defense, by definition, precludes liability altogether. If the foregoing claim by Austin is correct, however, relatively few excuses (or justifications) are complete defenses. Those justifications or excuses that do not preclude liability altogether-which Austin believed to be the more numerous-might be called partial defenses. Partial justifications and excuses have received far less scholarly attention than those that result in acquittal. In this paper I hope to make some small progress in correcting this oversight.

Original languageEnglish (US)
Pages (from-to)167-192
Number of pages26
JournalCanadian Journal of Law and Jurisprudence
Volume11
Issue number1
DOIs
Publication statusPublished - Jan 1 1998

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All Science Journal Classification (ASJC) codes

  • Law

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