ABSTRACT
This chapter argues that the conceptualizations hide important fundamental distinctions between defences and between defence groups, and that this obscuration distorts the theories and formulation of defences. It describes that better conceptualization and a more accurate reflection of how the law actually operates would instead recognize five groups of defences. Some doctrines that are called defences are nothing more than the absence of a required offence element. An offence modification defence can as easily be drafted as a negative element of the offence. Justification defences, such as lesser evils, self-defence, and law enforcement authority, exculpate on a theory that the actor avoided a greater harm or evil. Non-exculpatory defences, a final group of general defences, do not exculpate an actor but do provide exemption from liability. Compelling non-exculpatory public policy interests also serve as the basis for many constitutional defences. A defendant with a non-exculpatory defence may escape conviction in spite of his or her blameworthiness.
