Definition
Special pleading has two distinct meanings — one technical and historical, one colloquial — that have almost entirely separated from one another in modern legal usage.
1. (Common law procedure) The formal art and science of pleading, specifically the system governing how parties frame their written allegations beyond the general issue. Where a defendant declines to plead the general issue (a flat denial of the plaintiff's claim) and instead advances new or affirmative matter — justification, excuse, avoidance — to defeat the plaintiff's averments without directly denying them, that response is a special plea, and the defendant is said to plead specially. The body of learning governing these formal requirements became known collectively as "special pleading," the science of pleading.
2. (Logical fallacy / informal legal usage) The fallacious practice of asserting that a particular case is an exception to a general rule without providing adequate justification — applying a double standard, typically to favor one's own position. In legal argument, this usage appears most often in judicial opinions, briefs, and legal commentary as a criticism of an argument that demands special treatment not available to others in analogous circumstances.
Common Language
Modern common usage (Wiktionary): Arguing that a particular case is an exception to a generally accepted rule, without justification and without a relevant basis.
Historical common usage (Webster's 1913): The practice of drawing pleadings for parties in suits at law; also used loosely to refer to technically artful or overly narrow argumentation.
The gap here is significant and directional. The common usage has almost completely displaced the technical legal meaning. When a judge says "that is special pleading," she means the logical fallacy — not a compliment on the craft of formal pleading. When a legal historian or proceduralist says "special pleading," the reference is to a rigorous and formalized system of common law practice. Researchers encountering either phrase must determine from context which meaning is operative, as the two are not merely different but nearly opposite in connotation: the historical legal meaning was a mark of professional skill; the modern common meaning is a rebuke.
Common Confusion
Special pleading is frequently confused with general pleading, which it is defined against. A general plea — most commonly the general issue — simply denies the opposing party's allegations in the broadest terms, putting the whole case at issue. A special plea advances new matter: it confesses the facts alleged but avoids their legal effect, or introduces affirmative matter not implicit in a general denial. The distinction drove the entire architecture of common law pleading and determined what issues would be submitted to the jury. Modern notice pleading under the Federal Rules of Civil Procedure largely abolished the practical significance of this distinction, which is why the term now survives mainly in its colloquial sense.
Why It Matters in Research
The chief research trap is the meaning shift. Pre-twentieth-century legal sources — cases, treatises, pleading manuals, and digests — use special pleading in its technical procedural sense, and the entries in Black's, Bouvier's, Rapalje & Lawrence, and Burrill all reflect that usage. A researcher reading a nineteenth-century opinion that praises counsel's "excellent special pleading" is reading praise, not criticism. The same phrase in a modern judicial opinion almost certainly signals disapproval of the argument's logic.
For corpus researchers working in Law Mind materials, the historical pleading sense is most relevant when researching common law civil procedure, forms of action, and the transition to code pleading in the mid-to-late nineteenth century. The Field Codes (beginning with New York in 1848) and ultimately the Federal Rules of Civil Procedure (1938) progressively displaced the technical apparatus of special pleading. Sources spanning that transition period may use the term in either sense, or in conscious reference to the system being replaced.
The science of special pleading was itself a recognized legal discipline, taught and practiced as a specialty. Treatises by Stephen, Gould, Chitty, and others form the foundational literature. When historical dictionary sources cite Gould, Pl. or Steph. Pl., those are references to Joseph Story Gould's Treatise on the Principles of Pleading and Henry John Stephen's Treatise on the Principles of Pleading in Civil Actions — standard shelf sources for nineteenth-century practitioners.
Finally, Burrill's observation deserves attention: the term "special" may have been used to distinguish written pleading from "pleading" in its popular oral sense — argument at the bar. That etymology clarifies why the label attached to the science generally, not just to one subspecies of pleas.
Historical Dictionary Support
The historical dictionaries agree on the core technical definition and cite the same foundational authority — Gould's Treatise on Pleading — almost uniformly. Black's and Rapalje & Lawrence offer nearly identical passages, both describing special pleadings as allegations "of a more complex or special character" advanced by a defendant who declines the general issue. Bouvier adds the key functional element: special pleading is matter advanced "to avoid the effect of the previous allegations of the opposite party, as distinguished from a direct denial." This is the conceptual core: avoidance, not denial.
Burrill takes a slightly different angle, treating special pleading primarily as the name of a science or discipline rather than a category of plea. He flags the ambiguity of the term "special" and suggests it may reflect a contrast with oral argument rather than with the general issue. This framing is useful: it explains why practicing "special pleading" was a professional identity, not just a procedural choice.
None of the historical dictionaries acknowledge the modern colloquial meaning, which had not yet achieved the dominance it now holds. Researchers should treat all historical dictionary definitions as reflecting the technical procedural sense exclusively.
Encyclopedia Cross-Reference
For the transition to modern pleading standards and the fate of formal common law pleading requirements in federal court, see: Federal Question Jurisdiction — 28 USC 1331 and the Well-Pleaded Complaint Rule (The Law Mind Civil Procedure & Evidence Encyclopedia, civpro_2). The well-pleaded complaint rule traces part of its lineage to questions about what a complaint must affirmatively allege — terrain directly shaped by the displacement of special pleading.