The Basic Organizing
Distinctions of Current Law
Using as a starting point the general outline of current law diagrammed in Chapter 1, this Part examines the operation of current law to develop a complete and internally consistent conceptual structure. As noted, the exercise is partially descriptive and partially apologetic. It constructs a conceptual framework from the actual distinctions that current law uses, at least up to the point where the current distinctions are fuzzy, irrational, or internally inconsistent. Where a weakness in current law is apparent, it makes necessary adjustments, while trying to keep current law's general thrust. That is, it presents current law's conceptualization in the best light possible.
The most basic organizing distinction in current law is between offences and defences, but that distinction is problematic when one examines how current law actually operates. In casual language, anything that prevents conviction of a defendant is called a 'defence', but this term includes doctrines that are very different from one another. An 'alibi defence', for example, simply refers to the presentation of facts that suggest the defendant was somewhere else when the offence was committed, and therefore cannot be the perpetrator. It is not a legal doctrine but a form of factual counterclaim. A defence of diplomatic immunity, on the other hand, may admit commission of the offence (although it need not), yet suggest that the defendant nonetheless cannot be prosecuted for the offence. The legal doctrines that we refer to as defences typically are one of five sorts.1
Like the alibi defence, many defences simply prevent proof of the requirements of an offence. Mistake or mental illness negating a culpability ('fault') element are of this sort. Where they do not provide complete exculpation but only a reduction in liability, they sometimes are referred
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