DEFENCE - The Law Mind Legal Dictionary

DEFENCEAuthored

The Law Mind • 1300 words

Definition

In law, "defence" (also spelled "defense" in American usage) carries several distinct meanings depending on context:

In pleading and civil procedure: A defendant's formal denial of, or legal answer to, the plaintiff's claim. This encompasses both the procedural act of responding to a complaint and the substantive grounds on which a defendant contests liability or seeks to defeat the opposing party's case.

In criminal law: The legal and factual arguments raised by or on behalf of an accused person to defeat, mitigate, or excuse criminal liability. Defences may be complete (negating liability entirely) or partial (reducing the severity of the charge or sentence).

In tort law: The justified use of force to protect oneself or another from unlawful attack. This usage overlaps with the doctrine of self-defence and related privileges, authorizing proportionate resistance to threatened harm.

In constitutional and public law: The organized capacity of a state to resist external threats, encompassing military forces, national security apparatus, and related governmental functions.

Common Language

Modern common usage (Wiktionary): The action of defending or protecting from attack, danger, or injury; something used to oppose attacks; an argument in support or justification of something; in sports, the team or players positioned to prevent the opposing side from scoring.

Historical common usage (Webster's 1913): Directs the reader to "Defense" without independent elaboration, suggesting the two spellings were treated as interchangeable in general usage by the early twentieth century.

Editorial note: The gap between common and legal meaning is most acute in the pleading context. Ordinary speakers understand "defence" as protection or resistance — an active response to threat. In classical pleading, however, defence was a formal denial, a precise procedural formula that could be technically defective if improperly pleaded. A defendant who mounted a vigorous factual contest but omitted or misstated the required defence formula could suffer procedural consequences entirely unrelated to the merits. That technical precision is invisible in everyday usage.

Common Confusion

Defence is frequently conflated with plea, denial, and justification, but the terms occupy different positions. A plea is the formal document or statement by which a defence is entered. A denial is one species of defence — the traversal of a fact alleged by the plaintiff — but a defence may also consist of a confession and avoidance, where the defendant admits the plaintiff's facts but asserts new matter that defeats the claim. A justification is a complete defence that renders otherwise unlawful conduct lawful (as in self-defence), distinguishable from an excuse, which acknowledges wrongfulness but exempts the defendant from liability on other grounds. Researchers conflating these terms will misread historical pleading records and miss the structural logic of common law procedure.

Recognized Forms

/SUBTYPES

Full defence: The complete formal protestation in early common law pleading, by which a defendant denied the wrong, the force, and everything alleged. Required in many actions before the defendant could be heard at all.

Half defence: A shortened formula retaining only a partial denial, eventually the standard form. Burrill records the half defence formula as still in use at the time of his writing.

General defence (traverse): A flat denial of the material facts alleged in the plaintiff's claim.

Special defence (confession and avoidance): An admission of the plaintiff's stated facts accompanied by the allegation of new matter — such as release, accord and satisfaction, or privilege — that defeats the claim despite the admission.

Affirmative defence: In modern procedure, a defence that raises new matter beyond a simple denial, on which the defendant typically bears the burden of pleading and, often, proof.

Why It Matters in Research

Spelling variation is the first navigational trap. British, Commonwealth, and pre-twentieth-century American sources use "defence"; modern American statutes, rules, and cases predominantly use "defense." Both spellings appear throughout the Law Mind corpus. A keyword search limited to one spelling will miss material indexed under the other.

The term's meaning shifted fundamentally between the classical common law period and modern procedural practice. In Blackstone's era and in the sources captured by Burrill and Rapalje & Lawrence, "defence" was as much a term of pleading art as of substantive law — a required formula whose presence or absence shaped whether a defendant could be heard. The abolition of common law pleading forms in most jurisdictions (via nineteenth-century code pleading reforms and later the Federal Rules of Civil Procedure in the United States) stripped away that procedural dimension. Researchers reading pre-reform cases must understand that references to "full defence" or "half defence" describe formulaic pleading requirements, not the strength of a party's factual position.

In criminal law research, the taxonomy of defences — justification versus excuse, complete versus partial — carries real doctrinal weight that varies across jurisdictions and periods. Historical sources often use "defence" and "plea" interchangeably in criminal contexts; modern sources draw sharper distinctions. When tracing the development of a specific criminal defence (insanity, duress, necessity), researchers should expect terminological inconsistency across the corpus and calibrate search terms accordingly.

The tort law usage — forcible resistance to attack — connects defence to the broader corpus materials on self-defence, the castle doctrine, and proportionality of force. Bouvier's formulation that "the means used must always be proportioned to the occasion" is a durable statement of the proportionality limit that runs through centuries of case law.

Historical Dictionary Support

The historical dictionaries converge on the pleading origins of the term and on its Norman-French etymology, though they approach the subject from different angles.

Rapalje & Lawrence is the most analytically precise, tracing "defence" to the Norman-French defender, meaning to deny, and quoting Littleton to show that defence "originally signified merely a denial." This etymology illuminates why the formal pleading formula — however elaborate it became — was conceptually rooted in the act of denial rather than affirmative resistance.

Burrill's entry fills in the procedural mechanics, distinguishing full defence from half defence and recording the half-defence formula in use at the time of writing. His citation to Blackstone's Commentaries (3 Bl. Com. 296) anchors the term in the authoritative exposition of common law pleading.

Bouvier shifts to the tort law dimension — justified use of force — without engaging the pleading history, producing an entry that reads as complementary rather than contradictory. His proportionality formulation is practically useful but reflects the substantive law of self-defence rather than the term's primary technical meaning.

Anderson simply cross-references "Defense," consistent with his American audience and the spelling conventions of his period.

What the historical dictionaries collectively miss is the procedural transformation that was already underway when several of them were written. Code pleading reforms had eliminated or were eliminating the formal defence formula in most American jurisdictions, yet the entries describe classical pleading requirements without flagging that many readers would already be operating under new procedural regimes. Researchers should not assume the historical dictionary treatment reflects the law at the time a particular case or document was produced.

Jurisdictional Note

American jurisdictions spell the term "defense" and have largely replaced the classical pleading formula with notice pleading under codes and rules modeled on the Federal Rules of Civil Procedure. Commonwealth jurisdictions retain "defence" and in some cases preserve closer links to common law pleading traditions, though procedural reform has been widespread. In criminal law, the scope and elements of specific defences — particularly insanity, diminished responsibility, and duress — vary significantly between common law systems and should not be generalized across jurisdictions.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Pleading (Common Law); Self-Defence and Justification; Criminal Defences.

DEFENCEmain

Bouvier's Law Dictionary • 1928

Torts. A forcible resist- ance of an attack by force. A man is justified in defending his per- son, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and that an excess becomes itself an injury; 3 M. & W. 150; 69 Miss. 478; 93 Cal. 476; 80 Fla. 148; 27 Tex. App. 562; 49 Ark. 548; 86 Ky. 39; but it must be in de- fence, and not in revenge; 1 C. & M. 214; 11 Mod, 48; Poll. Torts 255; 85 S. C. 288; for one is not justified in shooting another, if such other party is retreating or has thrown away his weapon; 129 Ind. 587; nor is a mere threat to take one's life, with nothing more, a sufficient defence or excuse for committing homicide; 85 8. С. 197. A man may also repel force by force in defence of his personal property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, as robbery, by any force short of taking the aggressor's life; 1 Bish. New Cr. L. § 875; or short of wounding or the em- ployment of a dangerous weapon; 148 Mass. 529. In the latter case, Holmes, J., said :- "We need not consider whether this ex- planation is quite adequate. There are weighty decisions which go further than those above cited, and which can hardly stand on the right of self-defence, but in- volve other considerations of policy." See 42 III. App. 427. With respect to the defence or protection of the possession of real property, although it is justifiable even to kill a person in the act of attempting to commit a forcible felony, as burglary or arson, yet this justi- fication can only take place when the party in possession is wholly without fault; 1 Hale, Pl. Cr. 440, 444; 1 East, Pl. Cr. 259, 277. And where an illegal forcible attack is made upon a dwelling-house with the intention merely of committing a trespass, and not with any felonious intent, it is generally lawful for the rightful occupant to oppose it by force; 7 Bing. 305; 20 Eng. C. L. 139. See, generally, 1 Chit. Pr. 589; Grotius, lib. 2, c. 1; Rutherford, Inst. b. 1, c. 16; 2 Whart. Cr. L. § 1019; Bishop; Clark ; Wharton, Criminal Law; Thompson, Cases of Self-Defence; ASSAULT; SELF-DEFENCE. In Pleading and Practice. The denial of the truth or validity of the complaint. A general assertion that the plaintiff has no ground of action, which is afterwards extended and maintained in the plea. 3 Bla. Com. 296; Co. Litt. 127; 33 Ind. 448. In this sense it is similar to the contestatio litis of the civilians, and does not include justification. In a more general sense it denotes the means by which the defendant prevents the success of the plaintiff's action, or, in criminal practice, the indictment. The word is commonly used in this sense in modern practice. Half defence was that which was made by the form "defends the force and injury, and says" (defendit vim et injuriam, et dicit). Full defence was that which was made by the form "defends the force and injury when and where it shall behoove him, and the damages, and whatever else he ought to defend" (defendit vim et injuriam quando et ubi curia consideravit, et damna et quicquid quod ipse defendere debet, et dicit), commonly shortened into "defends the force and injury when," etc. 8 Term 632; 3 Β. & P. 9, n.; Co. Litt. 127 b; Willes 41. It follows immediately upon the state- ment of appearance, "comes" (venit), thus: "comes and defends." By a general de- fence the propriety of the writ, the com- petency of the plaintiff, and the jurisdic- tion of the court were allowed; by de- fending the force and injury, misnomer was waived; by defending the damages, all exceptions to the person of the plaintiff; and by defending either when, etc., the juris- diction of the court was admitted. 3 Bla. Com. 298. The distinction between the forms of half and full defence was first lost sight of; 8 Term 633; Willes 41; 3 B. & P. 9; 2 Saund. 209 c; and no necessity for a technical defence exists, under the modern forms of practice. Formerly, in criminal trials for capital crimes the prisoner was not allowed counsel to assist in his defence; 1 Ry. & M. 166;3 Campb. 98; 4 Sharsw. Bla. Com. 856, n. This privilege was finally extended to all persons accused of felonies in England, by 6 & 7 Will. IV. c. 114; and in the United States by statute or universal practice; 3 Whart, Cr. L. § 3004.

DEFENCEmain

Rapalje & Lawrence • 1888

(363) will subject to being divested (see DIVEST), and (2) those which are peremptory and and to an estate or interest subject to a permanent, and go to the entire merits of power of revocation. See POWER. - NORMAN-FRENCH: defender, to deny (il defendera forsque tort et force, he shall only deny the wrong and the force, Litt. § 195,) so that defence originally signified merely a denial. 3 Bl. Com. 296; Hargrave's note to Co. Litt. 127 b. 21. Self-defence. -The right of private or self-defence is the right which every person has to inflict death or bodily harm in order to defend himself or any other person from unlawful violence, provided that he inflicts no greater injury than he in good faith and on reasonable grounds believes at the time to be necessary. Steph. Cr. Dig. 124; 3 Steph. Com. 241. 2. In pleading, a defence is a reason given by the defendant, respondent, prisoner or other person against whom an action or proceeding is brought, tending to show that there is no case against him. § 5. In criminal matters, when a prisoner is brought to the bar and arraigned he either confesses the charge, stands mute, or does not answer directly to the charge, which may be entered as a plea of not guilty, or pleads to the jurisdiction, or in abatement, or demurs, or pleads specially in bar, or, generally, that he is not guilty. In addition to these several modes of defence, there were formerly what were called "declinatory pleas"-the plea of sanctuary and the plea of clergy-both now abolished. See, also, ARREST OF JUDGMENT; DEMURRER; PLEA. 26. Matrimonial suits. - In matrimonial suits, in England, defences are divided into absolute, i. e. such as being established to the satisfaction of the court are a complete answer to the petition, so that the court can exercise no discretion, but is bound to dismiss the petition; and discretionary, or such as being established leave 3. In ordinary actions, defences are of innumerable variety, both of law and of fact, and are put forward either by answer, plea or demurrer (q. v.) Some of the old defences at common law had short names, to the court a discretion whether it will pro- ،، " which are still preserved, e. g. not guilty," non assumpsit," "nil debet," &c. See, also, AMENDS; CONFESSION AND AVOIDANCE; PLEADING; TRAVERSE. 4. In equity, the matters of defence which may be relied on are in their nature susceptible of two divisions, viz.: (1) those which are dilatory, which merely delay or suspend or obstruct the suit without touching the merits, until the impediment or obstacle insisted on is removed; nounce a decree or dismiss the petition. Thus, in a suit for dissolution, condonation is an absolute, adultery by the petitioner a discretionary, defence. Browne Div. 86. 7. County court. -In English county court practice, defences of set-off, infancy, coverture, statute of limitations, and discharge under the bankruptcy acts, are called "special defences," and a defendant cannot set up one of them unless he gives the registrar notice of his intention to do so (9 and 10 Vict. c. 95, § 76; Poll. C. C. Pr. 100), and files a notice with a concise statement giving the material facts involved in the defence.

DEFENCEcrossref

Anderson's Dictionary of Law • 1890

See DEFENSE.

DEFENCEn.

Websters Unabridged Dictionary (1913) • 1913

See Defense.

defencenoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

The action of defending, of protecting from attack, danger or injury. | Something used to oppose attacks. | An argument in support or justification of something. | A strategy and tactics employed to prevent the other team from scoring; contrasted with offence. | The portion of a team dedicated to preventing the other team from scoring; contrasted with offence. | Government policy or (infra)structure related to the military. | Prohibition; a prohibitory ordinance.

defenceverb

Wiktionary (English) • 2026

To furnish with defences; to fortify.

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