legal profession, defending, extenuation, palliation, mitigation, jurisprudence, legal ethics
In his characteristically trenchant and influential investigation, "A Plea for Excuses",' J. L. Austin reminded us that we can and do use different strategies of defending a person when it is claimed that he has done wrong. He drew attention to two distinct tactics: One way of going about this (defending a person) is to admit that he, X, did that very thing, A, but to argue that it was a good thing, or the right or sensible thing, or a permissible thing to do . . . To take this line is to justify the action, to give reasons for doing it: not to say, to brazen it out, to glory in it or the like. A different way of going about it is to admit that it wasn't a good thing to have done but to argue that it is not quite fair or correct to say badly "X did A". . . (W)e admit that it was bad but don't accept full or even any responsibility.2 While admitting that the concepts of justification and excuse may meld together on occasion and that other concepts live out a shady existence somewhere between the two, (he offers "extenuation", "palliation" and "mitigation" as examples), Austin nevertheless urges that the basic dichotomy be embraced because it does reflect two separate facets of our moral life.
Donald Galloway, "Necessity as a Justification: A Critique of Perka" (1956) 10:1 Dal LJ 158.