In law, an absolute defence (or defense) is a factual circumstance or argument that, if proven, will end the litigation in favor of the
defendant. The concept of an absolute
defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense indus ...
is not a rigid one. Statutes frequently use the term merely as a synonym to "full" or "complete". It is more often used, however, as a term of art in both criminal and civil law to refer to an underlying set of facts and laws, not raised by the complaint or indictment, which will require the defendant's dismissal even if the factual allegations of the complaining pleading are true.
Another characteristic of an absolute defence is that, when it is pleaded and proven, it is not subject to mitigation or collateral attack.
Examples of ''absolute defences'' include:
* ''Truth'' of an allegedly
libelous statement (in modern
defamation): a person cannot be made to pay damages for a defamatory statement, if the person can show that the statement is true (even if the statement is damaging, and the person said it in bad faith). This is the case in some jurisdictions, including the United States, but not in others, including
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
and Australia.
* ''
Self-defence
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
'' in a
battery
Battery most often refers to:
* Electric battery, a device that provides electrical power
* Battery (crime), a crime involving unlawful physical contact
Battery may also refer to:
Energy source
*Automotive battery, a device to provide power t ...
case: a person cannot be held criminally liable for battery if they can prove
Right of self-defence under certain circumstances (e.g. where
retreat was impossible, or where the use of force was not excessive).
* ''Immunity'' of various kinds can provide an absolute defence. For example,
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
, a common law doctrine followed in many jurisdictions, provides a
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
with immunity unless it agrees to waive its immunity, usually by legislation allowing specific claims to be brought.
Use of the word "absolute" sometimes causes confusion, because even in the law "absolute" is sometimes used simply as a synonym for "full" or "complete". As a term or art, however, there are many ''complete'' defences which are not customarily called ''absolute''. Most notably, innocence, while a complete defense to a criminal charge, is not generally termed "absolute", because it involves a material fact of the pleading. On the other hand, double jeopardy is more likely to be termed an absolute defence; an indictment or (other criminal initiating pleading) does not have to state that the defendant has not previously been tried on the crime, but once a defendant shows that he has been previously tried for a crime, his dismissal is required by the US Constitution.
Both an ''absolute defence'' and a ''complete defence'' must be distinguished from a
partial defence
In legal systems based on common law, a partial defence is a defence that does not completely absolve the defendant of guilt.A
cla ...
, by which the litigant hopes to mitigate the outcome of the litigation, or limit culpability, but the liability is not eliminated. Examples include
diminished capacity
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental funct ...
to understand the wrongfulness of the action, or a
mistake of fact
A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not ...
that affected the intention of the litigant.
Common law
Legal defenses
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